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Empirical SCOTUS: If Ginsburg leaves, it could be the liberals’ biggest loss yet – A look back at previous justices replaced with more conservative successors

The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the cour...
Tags: Health, Supreme Court, Law, Obama, Planned Parenthood, Washington Post, Kentucky, White House, Politico, Barack Obama, Indiana, Austin, United States, Kansas, Donald Trump, Ruth Bader Ginsburg


Reargument analysis: Justices seek a “middle position” in takings litigation case

During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversi...
Tags: Featured, Law, Congress, San Francisco, Pennsylvania, United States, Francisco, Sachs, Sonia Sotomayor, John Roberts, Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Argument analysis: Justices have strong views about removal of class actions

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument. The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts ha...
Tags: Home Depot, Featured, Law, Congress, Citibank, Jackson, Sonia Sotomayor, John Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan, Kagan, Samuel Alito, Goldstein Russell


Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance (Corrected)

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayo...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Davis, Johnson, Corrections, United, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts, Scalia, U S Court of Appeals


Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayo...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Davis, Johnson, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts, Scalia, U S Court of Appeals, Sotomayor, Stephen Breyer


Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail lice...
Tags: Amazon, Utah, Featured, Supreme Court, Law, Tennessee, Nashville, Ruth Bader Ginsburg, Memphis, Wilson, Sonia Sotomayor, John Roberts, Phillips, Blair, Howe, Alito


Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires...
Tags: Featured, Supreme Court, Law, Congress, Medicare, Ruth Bader Ginsburg, National Labor Relations Board, Shah, Thomas, Sonia Sotomayor, APA, HHS, D C Circuit, Department of Health and Human Services, Sotomayor, Bowen


Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity. Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Li...
Tags: Featured, Supreme Court, Law, Congress, United States, Adams, Sonia Sotomayor, TVA, John Roberts, Roberts, Alito, Rouse, Tennessee River, Sotomayor, Stephen Breyer, Breyer


Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

The week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the case, they seemed skeptical about allowing broad fee awards. The case calls for a reading of Section 505 of the Copyright Act, which defines the recove...
Tags: Featured, Law, Congress, Court, Ruth Bader Ginsburg, Paul Clement, Sonia Sotomayor, John Roberts, Perry, Roberts, Sotomayor, Elena Kagan, Kagan, RIMINI, Clement, Mark Perry


Argument analysis: The familiar yet fresh debate in Franchise Tax Board of California v. Hyatt

Federal courts aficionados have been looking forward to the oral argument in Franchise Tax Board of California v. Hyatt, and the event did not disappoint. The question was whether to overrule the decades-old precedent Nevada v. Hall, which held that states lack sovereign immunity in one another’s courts. The argument largely broke down according to familiar ideological lines, but the discussion still had verve and creativity, in part thanks to the performances of veteran advocates Seth Waxman an...
Tags: Featured, Supreme Court, Law, California, Nevada, Ruth Bader Ginsburg, Hall, Hyatt, Sachs, Sonia Sotomayor, John Roberts, Waxman, Alito, William Rehnquist, Sotomayor, Stephen Breyer


A “view” from the courtroom: Comity Central

This term of the court has had plenty of arguably boring cases on statutory interpretation, pre-emption and procedure. But every now and then a low-key case comes along that results in an argument amounting to a heady constitutional seminar. Today’s lone case for argument, Franchise Tax Board of California v. Hyatt, will be one of those. Seth P. Waxman for petitioner (Art Lien) When the court takes the bench, Justice Ruth Bader Ginsburg is again absent as she recuperates from her recent lu...
Tags: New York, Featured, Maryland, Supreme Court, Law, California, Georgia, United States, Hawaii, Social Security, Broadway, Nevada, University Of California Berkeley, Social Security Administration, Ruth Bader Ginsburg, Hall


Argument analysis: Searching for the least unnatural reading

The second argument on Monday was in Obduskey v. McCarthy Holthus LLP, a case about whether law firms that handle nonjudicial foreclosures are “debt collectors” within the meaning of the Fair Debt Collection Practices Act. If the argument clarified anything, it’s that the FDCPA is a messy statute. This case arises from a crowded corner of consumer law involving significant state and federal regulations that do not always play well together. Colorado foreclosure law requires a firm initiating a n...
Tags: Featured, Law, Congress, Colorado, United States, Ruth Bader Ginsburg, Bond, Mccarthy, Wells Fargo, Fdcpa, Sonia Sotomayor, John Roberts, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Argument analysis: Justices wade deep into the copyright weeds

Tuesday’s argument in Fourth Estate v. Wall-Street.com featured competing interpretations of the phrase “registration of the copyright claim has been made” in 17 U.S.C.§ 411(a), which requires copyright registration as a prerequisite for filing an infringement suit. Because much of the argument focused on niceties of textual interpretation, I’ll quote the language of the relevant subsection: [N]o civil action for infringement of the copyright in any United States work shall be instituted until p...
Tags: Featured, Supreme Court, Law, Congress, United States, Ruth Bader Ginsburg, Copyright Office, Sonia Sotomayor, John Roberts, Ellis, U S Court of Appeals, Elena Kagan, Kagan, Kavanaugh, 11th Circuit, Fourth Estate


Argument analysis: Justices grapple with preclusion and “occupation” in Crow Tribe treaty case

On Tuesday, the Supreme Court heard argument in its latest foray into Indian treaty interpretation, Herrera v. Wyoming. The case concerns the persistence of the Crow Tribe’s hunting right in the 1868 Second Treaty of Fort Laramie. In an occasionally meandering argument, the Supreme Court repeatedly circled the three issues at the core of the case: issue preclusion, the implications of the court’s holding in its 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians, and the meaning of...
Tags: Featured, Minnesota, Supreme Court, Law, Wyoming, Sonia Sotomayor, Ward, John Roberts, Roberts, Liu, Randy, U S Court of Appeals, Sotomayor, Stephen Breyer, Breyer, Mille Lacs


Argument analysis: Gleaning the FDA’s meaning for impossibility pre-emption

Much of the federal government may be in shutdown mode, but the Supreme Court is still open for business. The Supreme Court opened its January session Monday morning with argument in Merck Sharp & Dohme Corp. v. Albrecht, a case about the workings of the Food & Drug Administration (still partially open) and when the agency’s actions may insulate drug manufacturers from state tort suits through “impossibility pre-emption.” An important and often-used litigation defense for manufacturers, impossib...
Tags: Featured, Supreme Court, Law, Merck, United States, Fda, Sonia Sotomayor, Stewart, John Roberts, Albrecht, Roberts, Ginsburg, Levine, Sotomayor, Stephen Breyer, Breyer


The justices return, without Ginsburg or any new grants (Updated)

[Editor’s Note: This post was updated to cover the four cases in which the Supreme Court asked the U.S. solicitor general to file briefs.] The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts. The justices issued...
Tags: Texas, Featured, Supreme Court, Law, Virginia, New York City, Court, Georgia, Indiana, United States, Citigroup, Argentina, Ohio, Atkins, Lgbtq, Ruth Bader Ginsburg


Congresswoman Ilhan Omar's Nails Make More Than Just A Beauty Statement

On Thursday, the U.S. House of Representatives' new class streamed into the U.S. Capitol for the very first time, bringing with them a bevy of beauty looks that have rarely been seen inside the prestigious government building. Rep. Alexandria Ocasio-Cortez of New York wore her signature red lipstick. Rep. Ayanna Pressley of Massachusetts wore her hair in twists. And Rep. Ilhan Omar of Minnesota, who came to the U.S. as a refugee from Somalia and is one of the first Muslim-American women in Cong...
Tags: Fashion, Music, New York, Minnesota, Obama, Congress, White House, Massachusetts, Somalia, Bronx, Omar, Sonia Sotomayor, Sotomayor, U S House of Representatives, Ilhan Omar, Ayanna Pressley


SCOTUS Map: December 2018

Civility and collegiality continued to be a theme in the Supreme Court justices’ appearances this month. On a December 7 visit to Duquesne University, Justice Sonia Sotomayor recounted a conversation about civility with the other justices. Previous justices were at times openly hostile to one another, and the court’s current era of collegiality is perhaps more of an exception than the rule. According to Sotomayor, retired Justice Sandra Day O’Connor was in large part responsible for this chang...
Tags: Hollywood, Featured, Nbc, Supreme Court, Law, Congress, Washington, America, Cnn, United States, Netherlands, Npr, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Variety


Roberts, liberal justices snub Trump bid to enforce asylum policy

The justices on a 5-4 vote rebuffed the administration's bid to put on hold a California-based federal judge's order preventing it from carrying out the policy making anyone crossing the U.S.-Mexican border outside of an official port of entry ineligible for asylum. The planned asylum change was a key component of Trump's hardline policies aimed at making it tougher for immigrants to enter and stay in the United States. Roberts, who last month rebuked Trump over his criticism of the judiciary,...
Tags: News, California, United States, Trump, Sonia Sotomayor, Roberts, Ruth Bader Ginsburg Stephen Breyer Elena Kagan


SCOTUS for law students: President George H.W. Bush’s Supreme Court legacy

Shortly before his death in 1826, President John Adams was quoted as saying, “My gift of John Marshall to the people of the United States was the proudest act of my life.” Adams was one of the earliest exponents of the view that nominations to the Supreme Court form a very important part of any president’s legacy. Consider the legacy of President George H.W. Bush. Although he served only one four-year-term in the Oval Office, Bush, who died on November 30, had a profound impact on the Supreme Co...
Tags: Featured, Supreme Court, Law, Congress, Washington, Senate, White House, Boston, United States, Ronald Reagan, Missouri, New Hampshire, Associated Press, Department Of Justice, John Adams, Donald Trump


Argument analysis: Justices wrestle with scope of cross-examination of social security experts

On Tuesday, the Supreme Court heard argument in an important Social Security Disability Insurance case, Biestek v. Berryhill. At issue was whether the Social Security Administration may ground a decision to deny benefits on the opinion of a vocational expert who refuses to disclose the data on which that opinion relies. Under the regulations, once a claimant has demonstrated that a severe impairment prevents her or him from returning to past relevant work, the agency must show that jobs exist in...
Tags: Featured, Supreme Court, Law, Social Security, Social Security Administration, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, SSA, Yang, Roberts, Ginsburg, Alito, Sotomayor, Stephen Breyer, Elena Kagan


Argument analysis: What would John Marshall do?

“[I]n McCulloch vs. Maryland, the court said that in general we don’t want to be micromanaging all the details of state taxation,” attorney Lawrence Rosenberg told the justices at the end of Monday’s oral argument in Dawson v. Steager. That’s not the way that McCulloch is usually remembered—far more famous is Chief Justice John Marshall’s statement in the 1819 case equating “the power to tax” with “the power to destroy.” But in any event, it was apparent by the end of the argument that the curre...
Tags: Featured, Maryland, Law, Senate, West Virginia, United States, Ruth Bader Ginsburg, Charleston, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Lindsay, Rosenberg, Sotomayor, Stephen Breyer


Argument analysis: Justices debate revised language in patent-priority statute

This morning’s argument in Helsinn v. Teva Pharmaceuticals brought the justices their first patent case of the year. As expected, this argument included little of the technical concerns that so often dominate patent cases.  This case comes to the court as a simple and confined question of statutory language, and the argument suggested that the court will resolve it from that perspective. The dispute involves provisions of the Patent Act that “bar” an inventor from obtaining a patent if the inven...
Tags: Featured, Law, Congress, AIA, Sonia Sotomayor, Stewart, Stephen Breyer, Kagan, Samuel Alito, Teva, Kavanaugh, U S Court of Appeals for the Federal Circuit, Teva Pharmaceuticals, Merits Cases, Leahy Smith America, William Jay


Argument analysis: Justices appear divided in debate over anti-fraud securities rules

The dividing lines were apparent at Monday’s argument in Lorenzo v Securities and Exchange Commission, as several justices seemed to think it self-evident that the conduct of petitioner Francis Lorenzo amounted to a fraudulent scheme under the federal securities laws, while at least one justice, Neil Gorsuch, appeared ready to rule for Lorenzo. To understand the debate, some background is useful. This case follows from the Supreme Court’s 2011 decision in Janus Capital v First Derivative Traders...
Tags: Featured, Supreme Court, Law, SEC, Janus Capital, Securities And Exchange Commission, Sonia Sotomayor, Alito, Sotomayor, Kagan, Lorenzo, Janus, Robert Heim, Gorsuch, Merits Cases, Heim


Justice Insider: Verbal Tics Of The Nation’s Highest Court

WASHINGTON (AP) — Justice Sonia Sotomayor wants you to know she’s sorry. Justice Neil Gorsuch is only asking for some help. When you sit through almost all the Supreme Court arguments in a week, a month or even a term (as The Associated Press does), you hear the same phrases over and over. Some justices have a sort of verbal signature, phrases they employ to disagree — more or less politely — with a lawyer arguing in front of them. Some can occasionally be jarring, as when Sotomayor interrupt...
Tags: Apple, News, Supreme Court, Washington, Ap, Associated Press, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Blatt, Sotomayor, Stephen Breyer, Breyer, Frederick, Elena Kagan, Kagan


SCOTUS Map: November 2018

With its newest member seated on the Supreme Court (and officially included in the latest class picture), the justices continued to project a united front, emphasizing their familial bonds and eschewing the labels of “conservative” and “liberal” altogether. “It was Justice Thomas who tells me that when he first came to the court, another justice approached him and said, ‘I judge you by what you do here. Welcome,’” Justice Sonia Sotomayor recounted in a recent interview with CNN’s David Axelrod...
Tags: Florida, Featured, Supreme Court, Law, Washington, France, Cnn, United States, Paris, Michigan, Globe, University of Toronto, Kennedy, Thomas, Harvard Law School, Sonia Sotomayor


Argument analysis: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states

Petitioner Tyson Timbs outside court after oral argument Today the Supreme Court heard oral argument in the case of Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Timbs countered that requiring him to forfeit the $42,000 car – which he had purchased with the proceeds from his father’s life insurance policy – would violate the Eighth Amendment’s ban o...
Tags: Featured, Supreme Court, Law, Indiana, Kia, Sonia Sotomayor, John Roberts, Fisher, Roberts, Howe, Alito, Stephen Breyer, Breyer, Elena Kagan, Kagan, Indiana Supreme Court


Argument analysis: Laughing and tolling the time to appeal class certification orders

Anyone who believes civil procedure is not funny should read the transcript of Tuesday’s argument in Nutraceutical Corp. v. Lambert, which showed eight interruptions for laughter in a case considering whether the 14-day period for appealing a class-certification decision is subject to equitable tolling based on concerns for fairness and justice. No one knew interlocutory appeals could be so humorous. The main provision at issue in the case is Federal Rule of Civil Procedure 23(f), which provides...
Tags: Featured, Law, Congress, California, Ruth Bader Ginsburg, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Alito, Lambert, U S Court of Appeals, Sotomayor, Breyer, Elena Kagan, Kagan


Supreme Court looks ready to let customers sue Apple for abusing its App Store monopoly

The Supreme Court hearing on Pepper v Apple has not gone well for Apple; the Supremes are considering whether App Store customers are entitled to sue Apple over its monopoly control over the Ios App Store. The plaintiffs say that Apple's 30% commission and control over pricing (exerted through search ranking and other mechanisms) raise prices on apps, and that they should be entitled to sue Apple for the additional expense its customers bear due to this monopolistic control. The framing is ...
Tags: Apple, Ios, Post, Business, News, Supreme Court, Scotus, US, Reagan, Pepper, App Stores, App Store, Wall, Supremes, Sonia Sotomayor, Sotomayor


Argument analysis: “Contempt of cop” — Justices search for compromise standard for First Amendment retaliatory arrests

In Monday’s argument in Nieves v. Bartlett, the justices pushed all sides for a compromise approach to handle the broad range of cases that might qualify as First Amendment retaliatory arrests, an approach that would neither allow all claims nor defeat all claims. The case arises from the arrest of respondent Russell Bartlett at Alaska’s Arctic Man Festival, which Chief Justice John Roberts described as “10,000 mostly drunk people in the middle of nowhere” patrolled by eight police officers. In ...
Tags: Featured, Supreme Court, Law, Congress, United States, Alaska, Ruth Bader Ginsburg, Wall, Wilson, Sonia Sotomayor, John Roberts, 9th Circuit, Moore, Roberts, Ginsburg, Alito