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This week at the court

Sun, 06/25/2017 - 12:09
The court will release its order list from the June 22 conference on Monday. The court will also release its final opinions of the October Term 2016 on Monday.

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Categories: Research

Petition of the day

Fri, 06/23/2017 - 22:22

The petition of the day is:

Elonis v. United States 16-1231

Issues: (1) Whether, as a matter of statutory or constitutional law, liability under 18 U.S.C. 875(c) requires an analysis of whether a reasonable person would be threatened by the communication, or whether it is instead sufficient to examine whether a particular recipient, whether reasonable or not, would have considered it threatening; and (2) whether an erroneous pre-trial holding that the defendant’s subjective mental state is not an element of the crime, followed by jury instructions and government argument to the same effect, can be harmless error.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Opinion analysis: In regulatory takings case, court announces a new test

Fri, 06/23/2017 - 21:31

Under the doctrine of regulatory takings, government regulation that goes “too far” in burdening property rights counts as a taking under the Fifth Amendment, entitling the owner to “just compensation.” In deciding such claims, courts often must deal with a tricky preliminary question: How should they define the bounds of the property that the government has allegedly taken? That question, often dubbed “the denominator problem,” could be outcome-determinative. For example, a regulatory burden on a small pond may seem minor if the property interest is defined as the developer’s much larger contiguous holdings, but severe if the property is defined as the pond itself. The court has long maintained that the denominator analysis must focus on the “parcel as a whole,” but that cryptic instruction has left litigants and lower courts at sea.

The parties in Murr v. Wisconsin offered the court three very different approaches to the denominator analysis. The case is interesting, and challenging, because each test would vindicate a slightly different view of the takings clause. As described in my earlier post, the Murrs argued that  a “merger” provision in state and local law — which barred them from selling separately their two undersized, riverfront lots — was a taking of the one lot they wished to sell. The Murrs urged a bright-line denominator test, hinging on the lot lines of the parcel alleged to be taken. This test would typically make it easier for landowners to assert takings. The state, arguing against a taking, offered a different bright-line test based on state law taken as a whole; here, the state’s merger provision would set the denominator as both lots together. The state’s test would offer the greatest deference to state prerogatives in defining property. Finally, the county (and in a similar vein, the United States as amicus) offered a multi-factor approach that would provide the least predictability, but the most flexibility to determine the interests of justice in any given case.

In today’s 5-3 decision, the court ruled against the Murrs, adopting aspects of the tests pressed by the county and the United States. Writing for the majority, Justice Anthony Kennedy stated that the denominator question, like the overall takings inquiry, turns on a multi-part analysis. “Like the ultimate question whether a regulation has gone too far,” he wrote, “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.” The court rejected the “formalistic” rules proposed by both the Murrs and Wisconsin. The Murrs’ proposed test, the court explained, would unjustifiably elevate lot lines over other aspects of state law. And although state law is relevant to the inquiry, the majority could not accept Wisconsin’s proposal to define the denominator based on state law as a whole: Courts must also “weigh[] whether the state enactments at issue accord with other indicia of reasonable expectations about property.”

The court emphasized that any denominator test must ascertain, through an “objective” analysis, “whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” The court’s prescribed test includes three factors: “[1] the treatment of the land under state and local law; [2] the physical characteristics of the land; and [3] the prospective value of the regulated land.” With regard to the third factor, the analysis should give “special attention to the effect of burdened land on the value of other holdings.”

 The court then applied these guidelines and concluded that the Murrs’ two lots should be treated as one for takings analysis. First, Wisconsin property law — specifically, the merger provision — treats the two parcels as one. Second, the lots are contiguous, and their “rough terrain,” “narrow shape,” and riverfront location all make land-use regulations predictable. Third, the lots are more valuable when combined. Going one step further (and arguably a bit beyond the question presented), the court then held that, on the facts of this case, no taking had occurred.

The court’s selection of a standard over a rule may sound like a property law technicality. But it also implicates deeper questions about the takings clause. All sides agree that, as the majority explains, the takings clause serves dual goals of protecting both private property rights and the government’s need to regulate in the public interest. But where does the emphasis belong — and who gets to decide? As I’ll explain, there are reasons to doubt that the choice of denominator test will drastically change the outcomes of takings cases. Still, the provocative theme of a battle between property rights and government regulation bubbles near the surface of this case, as do questions about how much deference is warranted to states, localities, and their lawmaking bodies. These controversial issues likely explain why the justices labored over the case until the penultimate day of opinion announcements.

Indeed, Chief Justice John Roberts’ dissent, joined by Justices Samuel Alito and Clarence Thomas, criticized the majority’s approach as a threat to property rights. Although the dissent did not dispute the court’s holding that no taking had occurred in this case, it rejected the new denominator test. Quoting Alexander Hamilton, the dissent noted that “‘the security of Property’ is one of the ‘great object[s] of government.’” But the new test, the dissent explained, stacks the deck in the government’s favor. It does that through “clear double counting”—considering the government’s interests not just in the ultimate inquiry into whether a taking occurred, but also when defining the denominator. Once applied, the dissent stated, this will push courts to define parcels in ways that align with “[r]easonable government regulation,” making it less likely that such regulation will be deemed a taking. Thomas penned a short separate dissent, expressing interest in taking a “fresh look” at whether the court’s regulatory-takings doctrine can be squared with the Constitution’s original public meaning.

This decision is certainly one for property law casebooks, and it provides a new test that will now play a major role in regulatory-takings litigation. It’s not clear, however, that the stakes are quite as high as the opinions suggest. The denominator question, after all, is just a preliminary step; courts must then decide whether a taking occurred, applying (as relevant here) the tests from Penn Central Transportation Co. v. New York City or Lucas v. South Carolina Coastal Council. In some cases — like this one — judges may be able to agree on whether a taking has occurred despite disagreement on what constitutes the denominator. Moreover, the Penn Central test, the usual test in regulatory-takings cases, is famous for the broad discretion it affords courts. Whether the denominator test preferred by the dissent and the Murrs would actually have spurred courts to find more takings, despite their broad discretion at the second step of the process, is an interesting but unclear empirical question. The more certain result of Murr is that the takings analysis is now more complex. Courts and litigators will spend the coming years interpreting the Supreme Court’s new, open-textured definition of the takings denominator.

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Categories: Research

And then there were six – the remaining cases

Fri, 06/23/2017 - 15:30

The justices are expected to take the bench on Monday at 10 a.m. to issue opinions in argued cases. There are six decisions still outstanding, involving everything from cross-border shootings to the death penalty and public funding for playgrounds at religious preschools. To be sure, there is no guarantee that we will actually get opinions on the merits in all six of these cases: Three of the remaining cases were argued before Justice Neil Gorsuch took the bench in April, creating a not-insubstantial possibility that the justices are deadlocked. With Gorsuch now on the bench, the justices could order reargument in those three cases, which would presumably take place next fall. But we will know much more by the end of Monday morning. In any event, here is a brief summary of each of the six cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer.

In a decision issued on Monday, the court – in an opinion by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

April sitting (April 17 to 26)

California Public Employees’ Retirement System v. ANZ Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand.

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are three opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the three remaining decisions he will write. Ginsburg and Alito have each written two of the April opinions, so it is unlikely they will be writing again for that session.

The post And then there were six – the remaining cases appeared first on SCOTUSblog.

Categories: Research

Opinion analysis: Immigrant who received bad advice gets another shot at staying in the U.S.

Fri, 06/23/2017 - 14:21

Yesterday the Supreme Court sent the case of a Bosnian Serb woman who was stripped of her citizenship for lying to immigration officials back to the lower courts. The justices rejected the government’s argument that Divna Maslenjak could lose her citizenship simply by making false statements, no matter how trivial. Instead, the court ruled, Maslenjak’s lies can only be held against her if they would have mattered to immigration officials. Today the justices gave another immigrant, Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though his odds of winning at trial were low and he was likely to be deported anyway.

Chief Justice Roberts with opinion in Lee v. U.S. (Art Lien)

Lee’s saga – which Chief Justice John Roberts, in his opinion for the court, recounted in some detail – began in 2009, when he pleaded guilty to possession of ecstasy with the intent to distribute it and was sentenced to one year and one day in prison. It was only after he pleaded guilty that Lee – who was a lawful permanent resident of the United States – learned that deportation was mandatory for crimes like his. For Lee, who had come to the United States nearly 30 years before, this was a penalty worse than prison: He owned two restaurants in the United States and was the sole caregiver for his elderly parents; by contrast, he no longer had any ties to South Korea, where he was born.

Lee went back to federal court, seeking to overturn his conviction. He argued that when his attorney advised him to take the guilty plea and assured him that he would not be deported, Lee was deprived of his constitutional right to have the assistance of a competent lawyer. The federal government agreed that the performance of Lee’s trial lawyer was deficient. But Lee’s conviction should still stand, the government argued, because the Supreme Court’s 1984 decision in Strickland v. Washington also requires a defendant to show that he was prejudiced by that inadequate assistance. And that, the government contended, Lee cannot do because the case against him was so strong. The U.S. Court of Appeals for the 6th Circuit agreed, holding that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”

Today the Supreme Court reversed. In his decision, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Roberts conceded that, in most cases, a defendant will not be able to show that he was prejudiced by taking a guilty plea when the evidence against him is overwhelming. But the court declined to enshrine that generalization in a categorical rule. Both common sense and the Supreme Court’s own case law, Roberts explained, acknowledge “that there is more to consider than simply the likelihood of success at trial.” Instead, Roberts continued, a defendant who is deciding whether to take a guilty plea will also consider the consequences of his conviction – after both a trial and a guilty plea. And the fact that a defendant’s odds of prevailing at trial may be very low does not end the inquiry: When the question is “what an individual defendant would have done,” Roberts reasoned, “the possibility of even a highly improbable result” – an acquittal – “may be pertinent to the extent it would have affected his decisionmaking.”

“In the unusual circumstances of this case,” Roberts determined, Lee has “adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” When Lee was deciding whether to accept the plea deal, Roberts observed, his most important consideration was whether he would be deported. This should hardly come as a surprise, Roberts added, when the Supreme Court itself has “recognized that preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” If Lee’s attorney had provided accurate advice, Roberts stressed, Lee “would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.” At least in Lee’s case, Roberts concluded, “that ‘almost’ could make all the difference,” particularly when the plea deal may have only saved Lee a year or two in prison. “Not everyone in Lee’s position would make the choice to reject the plea,” Roberts agreed. “But we cannot say it would be irrational to do so.”

Justice Clarence Thomas, in a dissent joined by Justice Samuel Alito, had harsh words for the court’s ruling today. As an initial matter, Thomas reiterated that, in his view, the Constitution does not protect a defendant’s right to receive accurate information about the effect that a guilty plea will have on his immigration status. But in any event, Thomas argued, Lee cannot show that he was prejudiced by his lawyer’s bad advice because going to trial would not realistically have made any difference: If he “had gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

Thomas also warned that today’s ruling will have “pernicious consequences for the criminal justice system” by undermining the finality of convictions. He predicted a flood of new challenges to plea agreements, in which defendants will “bear a relatively low burden to show prejudice” from their attorneys’ deficient advice. And that will in turn “impose significant costs on courts and prosecutors,” he suggested, by requiring additional evidentiary hearings. “In circumstances where a defendant has admitted his guilt, the evidence against him is overwhelming, and he has no bona fide defense strategy,” Thomas concluded, “I see no justification for imposing these costs.”

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Categories: Research

A “view” from the courtroom: The metes and bounds of the term

Fri, 06/23/2017 - 14:13

Fridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced.

But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming to finish its work by Monday. We’ll have our answer a little later.

The bar section is about as empty today as it was yesterday, with a handful of advocates present. Todd Gaziano of the Pacific Legal Foundation is here, awaiting a decision in Murr v. Wisconsin, a PLF case involving the takings clause. Jordan Lorence of the Alliance Defending Freedom is here, likely awaiting the decision in Trinity Lutheran Church of Columbia v. Comer. Arthur Spitzer, the legal director of the American Civil Liberties Union of Washington, D.C., is here, as he often is at the end of the term.

Justice Kennedy with opinion in Murr v. Wisconsin; Justices Alito and Thomas absent from bench (Art Lien)

Several members of the U.S. solicitor general’s office file in and take places at the counsel tables, while Noel Francisco, the president’s nominee for solicitor general who is serving in another Justice Department post pending his confirmation (thanks to this term’s decision in National Labor Relations Board v. SW General Inc.), takes a seat in the bar section. The public gallery contains a lot of young people today, but is not completely full.

Meanwhile, several of the justices’ law clerks have filled the vestibules on the south side of the courtroom.

After yesterday’s minor misstep, three marshal’s aides take their places behind the bench this morning at 10 a.m., before the justices’ arrival. When the court takes the bench, Justices Clarence Thomas and Samuel Alito are absent. It’s Thomas’ 69th birthday today, but we don’t think that’s the reason for his absence.

Chief Justice John Roberts announces that Justice Ruth Bader Ginsburg has the court’s opinion in Perry v. Merit Systems Protection Board.

This involves a U.S. Census Bureau employee who was dismissed for “spotty attendance,” she explains, and the legal question concerns the proper forum for an appeal of the merit board’s dismissal of a “mixed case” — one involving allegations that an adverse civil-service employment action was motivated by discrimination based on race, gender, age or disability.

Ginsburg’s opinion sides with federal district court review, rejecting the government’s argument that mixed claims be split between a district court and the U.S. Court of Appeals for the Federal Circuit.

Justice Neil Gorsuch has written a dissenting opinion, joined by Thomas. This was the first case heard by Gorsuch when he joined the court, and this is his first written dissent. He does not deliver it from the bench.

Justice Anthony Kennedy is next with the opinion in Murr v. Wisconsin, about a family’s challenge to municipal limits on its development of two parcels of property they own along the St. Croix river as a regulatory taking. (Authorities required the family to sell or build on the two lots as a single, combined property.)

This was one of the cases the court agreed to review while Justice Antonin Scalia was still alive, and the court carried it over to the current term. It was also argued on the first day of Gorsuch’s Senate confirmation hearing, when the attention of the press corps was focused on the Hart Senate Office Building.

What was already an important takings case took on a new perspective when, last fall, during one of many panel discussions in which legal experts preview the coming term, one such expert awoke us from a state of mental slumber by describing a footnote in the merits brief of the state of Wisconsin.

Wisconsin, in support of the idea that property lot lines are “creatures of state law,” reached back to English law to explain that landholdings were defined by “metes and bounds” — measurements and boundaries. Footnote 3 of the state’s brief then provided some further historical context:

In Medieval England, the ritual of “beating the bounds” was of particular importance to defining the boundaries of a parish, manor, or royal forest. … These “periodical surveys” preserved “ancient boundaries” by, among other methods, requiring young boys to beat a boundary mark “with peeled willow wands to impress its location on their memories.” … “[T]o preserve evidence of particular boundaries,” the “boys themselves” were sometimes whipped “on the spot” in exchange for a fee, “it being thought that the impression made on the memory was thus more likely to be lasting.” …. The testimony of boys—beaten during these ceremonies—was used to settle more than one boundary dispute.

Neither the oral argument nor Kennedy’s opinion delves into the practice of beating the bounds. Kennedy observes that in considering the proper unit of property against which to assess the effect of the challenged governmental action, “courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.”

Kennedy says that because, among other reasons, the value of the combined lots required by the local regulations is likely greater than the separate lots, the Murrs have not suffered a compensable taking. The chief justice — who does mention “metes and bounds” — has filed a dissent, joined by Thomas and Alito. Thomas has filed a separate dissent. And Gorsuch, of course, did not participate.

Roberts says that he has the opinion in Lee v. United States, one of the court’s many immigration cases this term.

The chief justice begins with the personal story of Jae Lee, who emigrated from South Korea at age 13 in 1982, graduated from high school in New York City, then set out to Memphis, where he eventually opened the Mandarin Palace Chinese Restaurant. Lee, long classified as a lawful permanent resident, was not always that lawful, as “he also engaged in some illegal acts,” Roberts says.

Lee’s arrest on drug charges led to some particularly bad advice from his defense lawyer, who had advised him that he would not face deportation if he pleaded guilty to the offense.

“Lee soon learned that his attorney was dead wrong,” Roberts says from the bench. Lee had pleaded guilty to an aggravated felony under the Immigration and Nationality Act and was subject to mandatory deportation. This led to a motion to vacate the conviction and sentence based on the fact that Lee had been provided constitutionally ineffective assistance of counsel.

It seems during this description that the chief justice is sympathetic to Lee’s claim.

He emphasizes the theme that Lee received “very bad advice” from his lawyer and that as someone who had lived for 30 years in the United States, established two businesses, had never returned to South Korea since childhood, and was the sole family member who could care for his elderly parents, Lee would place “paramount importance” on avoiding deportation.

Indeed, Roberts gets around to explaining that even though the evidence against Lee was strong, and thus choosing to go to trial might offer him faint hope of avoiding deportation, “we cannot say it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial.”

Thomas has filed a dissent joined but for one section by Alito. Gorsuch took no part.

With that, Roberts announces that “this court will next sit Monday morning at 10 o’clock. At that time we will announce all remaining opinions ready during this term of the court.”

Six cases remain. Whether they are all ready for announcement, or whether some are to be set for re-argument, is a question that should be answered on Monday.

[Correction: An earlier version of this post stated that Kennedy’s opinion in Murr v. Wisconsin mentions “metes and bounds.” It is Roberts’ dissent in that case that mentions that phrase.]

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Categories: Research

Live blog of opinions (Update: Completed)

Fri, 06/23/2017 - 09:20

We live-blogged as the court released opinions. The transcript is available at this link.

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Categories: Research

Friday round-up

Fri, 06/23/2017 - 07:25

As the Supreme Court term draws to a close, the justices have stepped up their output, holding an extra session yesterday to release opinions in three cases. Mark Walsh provides a “view” from the courtroom for this blog. At Crime and Consequences, Kent Scheidegger notes that the “theme out of the United States Supreme Court [yesterday was] materiality.”

The first decision was in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen. Amy Howe has this blog’s argument analysis. At Reuters, Lawrence Hurley reports that the justices “rejected the Trump administration’s stance that the government should be able to revoke citizenship of people for even minor misstatements in the citizenship application process.” Additional coverage comes from Lydia Wheeler at The Hill and Robert Barnes at The Washington Post. At The Narrowest Grounds, Asher Steinberg takes issue with Justice Samuel Alito’s concurring opinion, responding to two hypotheticals Alito employs to demonstrate that “materiality need not be causal,” but rather that “the illegal act … need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.”

In Turner v. United States, the court upheld the convictions of the defendants in a notorious murder trial concluding that evidence withheld from the defense would not have affected the outcome of the trial. Amy Howe analyzes the opinion for this blog. In The Washington Post, Robert Barnes reports that “Justice Stephen G. Breyer wrote that it was not reasonable to think that the withheld evidence — that a man convicted of similar crimes had been seen in the area — would have made a difference.”

Yesterday’s final decision was in Weaver v. Massachusetts, which held that excluding the public from jury selection did not invalidate a conviction because the defendant did not show that he was prejudiced by the exclusion. Rory Little has this blog’s argument analysis.

The Heritage Foundation’s SCOTUS 101 podcast features a discussion of Matal v. Tam, in which the justices held on Monday that a ban on the registration of disparaging trademarks violates the First Amendment. At Dorf on Law, Michael Dorf observes that “[t]hanks to Matal, the government speech doctrine will not swallow the First Amendment,” and he explores the implications of the decision for “claims to opt out of general obligations such as those imposed by antidiscrimination law” “in which an opt-out was asserted as a matter of free speech.”

At Take Care, David Gans weighs in on Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, arguing that “Ziglar offers a thin, unconvincing view of separation of powers that never takes seriously that the judiciary has an affirmative role to play in the Constitution’s system.” At PrawfsBlawg, Richard Re observes that “critics of Abbasi have argued that Bivens is now ‘all but overruled’ and ‘all-but limited … to its facts.,” but notes that “similar claims have been made before—and will likely be made yet again,” and that if “Bivens has nine lives, it seems to have two or three left to go.”

Briefly:

  • Slate’s Breakfast Table forum offers commentary on the term’s cases from Walter Dellinger here and Pamela Karlan here.
  • In an op-ed in The New York Times, Linda Greenhouse looks at Justice Ruth Bader Ginsburg’s opinion for the court in Sessions v. Morales-Santana, which held that differential treatment of parents by gender in immigration law violates equal protection; Greenhouse maintains that the “ruling defied expectations in every way that counted and suggests a more complex picture of the Roberts court than its notably ideology-riven decisions usually offer.”
  • At the Sentencing Law and Policy blog, Douglas Berman weighs in The Washington Post Fact Checker’s assertion that a statement about sex-offender recidivism by Justice Samuel Alito in Packingham v. North Carolina was misleading, noting that “these are challenging issues to discuss with precision both conceptually and statistically,” and that “though I am always pleased to see detailed discussion of crime data in theWashington Post, I am troubled by its decision to ‘award Three Pinocchios’ to a statement that is factually true.”
  • The Nation features two articles examining the troubling aftermath of Montgomery v. Louisiana, in which the court 18 months ago gave retroactive effect to an earlier decision prohibiting mandatory life-without-parole sentences for juvenile offenders, by Jessica Pishko here and Danielle Wolffe here.
  • In Time, Thomas Wolf observes that the court’s ruling in Gill v. Whitford, a high-profile partisan-gerrymandering case the justices will consider next term, “will go a long way to determining whether you choose your representatives — or the other way around — and whether you’ll be able to hold them accountable when they put party agendas over your interests.”
  • In Mother Jones, Nathalie Baptiste discusses Ayestas v. Davis, in which the court will hear a death-row inmate’s argument that he was denied access to “state resources that should be made available to pay for experts or investigators.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald discuss two amicus briefs filed by Cato – one in support of a cert petition challenging California “commercial-fishing license fees that require nonresidents to pay several times more than residents” here, and another in support of a petition contesting Minnesota’s “unfettered confinement of sex offenders” here.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Categories: Research

Petition of the day

Thu, 06/22/2017 - 22:23

The petition of the day is:

Town of East Hampton, New York v. Friends of the East Hampton Airport, Inc. 16-1070

Issues: (1) Whether equity jurisdiction allows a private plaintiff to obtain an injunction for non-compliance with the Airport Noise and Capacity Act of 1990 against an airport that does not receive federal funds or impose passenger facility charges; and (2) whether ANCA pre-empts noise and access restrictions by all airports, including the many thousands of small airports nationwide that do not receive federal funds or impose passenger facility charges.

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Categories: Research

And then there were nine – the remaining decisions

Thu, 06/22/2017 - 20:40

The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

 Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in a decision by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

March sitting (March 20 to 29)

Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?

The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.

 The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.

Lee v. United States: This is yet another installment in the series of “crimmigration” cases ” – that is, cases at the intersection of criminal law and immigration –  at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.

The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.

Kennedy has not yet written for March, so at least one of these two remaining decisions will almost certainly be his.

April sitting (April 17 to 26)

Perry v. Merit Systems Protection Board:Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.

California Public Employees’ Retirement System v. ANV Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand..

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are four opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the four remaining decisions he will write.

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Categories: Research

Opinion analysis: Courtroom closure error requires prejudice on collateral ineffective-assistance review

Thu, 06/22/2017 - 19:38

In a narrow and analytically useful opinion this morning, the Supreme Court ruled 7-2 that a courtroom closure error that is not raised until collateral attack via an ineffective-assistance claim does not require automatic reversal despite being labelled “structural” error. Instead, the defendant must show “prejudice” under a reading of Strickland v. Washington that five justices assume is correct. Justice Clarence Thomas filed a short concurring opinion, Justice Samuel Alito wrote an opinion concurring only in the judgment, and Justice Stephen Breyer filed a dissent joined by Justice Elena Kagan. Finally, Justice Neil Gorsuch joined Justice Anthony Kennedy’s majority opinion, Thomas’ concurring opinion, and Alito’s opinion that concurred only in the judgment. Perhaps unsurprisingly for a new justice, Gorsuch seems to want to be friends with as many of his colleagues as possible

Justice Kennedy with opinion in Weaver v. Massachusetts (Art Lien)

Weaver’s courtroom was “closed” during jury selection, an error to which he did not object 

As previewed, the courtroom where Weaver’s Massachusetts murder trial took place was too small to accommodate the more than 60 people who were called as potential jurors. So while the jury was being selected over two days, some potential jurors had to wait in the hallway. When Weaver’s mother and other supporters tried to enter (Weaver was 16 years old at the time), a court officer excluded them and anyone else who was not a potential juror. Weaver’s mother told Weaver’s lawyer about this problem, but the lawyer did not object. (The court notes that this all occurred before the U.S. Supreme Court ruled in Presley v. Georgia that the Sixth Amendment’s public trial right extends to jury selection, and that it was not uncommon at that time for Massachusetts to close courtrooms during jury selections in murder trials.) Once the jury was selected, Weaver’s further court proceedings were fully open.

Not only did Weaver not object at trial, but he did not challenge the courtroom closure in his direct appeal. However, in a collateral motion for a new trial filed five years after the conviction, Weaver claimed ineffective assistance based on his lawyer’s failure to object to the courtroom closing. The Massachusetts courts denied relief, ruling that although the closure was “structural error” and the lawyer’s failure to object constituted ineffective assistance of counsel, Weaver had not offered any evidence to show that he had been prejudiced by the temporarily closed courtroom. Whether a “structural error” requires a showing of prejudice when raised via an ineffective assistance claim is a question that had divided lower courts, so the Supreme Court agreed to review Weaver’s case.

Today’s opinion is doctrinally narrow but useful

As previously noted, oral argument in this case showed that Alito and Kagan were, as they often are in criminal cases, at opposite ends of the spectrum. It thus fell to Kennedy to find a majority path out of the thicket that prior “structural error” cases have created. As Breyer’s dissent today observed, it would seem impossible for a defendant to prove prejudice from a structural error when a reason for describing some errors as structural has been, as the majority opinion says, that their effects are “simply too hard to measure.” But Kennedy’s opinion offered grounds sufficient to attract a majority, while limiting the ruling “specifically and only” to the narrow context of this case. Overall, the opinion provides a usefully nuanced analysis of prior structural-error cases.

Structural error doctrine explained

Structural constitutional errors are errors that affect the entire framework of a criminal trial, as opposed to individual errors in the trial process along the way. Carefully examining a number of structural-error precedents, the court’s opinion explained that not all structural errors are alike. Instead, there are “at least three broad rationales” for why some constitutional errors are called structural. As a consequence, the precise analysis of and remedies for structural error “var[y] in a significant way from error to error.” This analysis of types of, and rationales for, structural errors is valuable and new.

First, the court explained, there are errors that operate not to protect against “erroneous conviction” of a criminal defendant, but in favor of “some other interest.” For these errors, “harm is irrelevant” — violation of the right may even aid a criminal defendant, such as appointing a lawyer in violation of the Sixth Amendment right of self-representation. Second, there are structural errors that can result in “automatic reversal” because “the effects of the error are simply too hard to measure.” Finally, some constitutional errors, such as denying an attorney or refusing to give a reasonable-doubt instruction, are adjudged to “always result[] in fundamental unfairness” and thus lead to reversal without any showing of harm.

Importantly, the court noted that “[t[]hese categories are not rigid,” and that “more than one of these rationales” may apply to a particular error. Most significantly, “[a]n error can count as structural even if [it] does not lead to fundamental unfairness in every case.

The “theme” of the court’s current term? Four narrowing assumptions

With regard to this particular case, the court explained that a violation of the public-trial right, while structural, does not always lead to fundamental unfairness. “[H]ow best to manage” the many possible variations in circumstances that may lead to closing a criminal courtroom presents difficult and fact-specific issues. The court has previously ruled that a courtroom might be closed for a preliminary segment of a trial and for reasons of some necessity, without necessitating reversal. Because a public-trial error is therefore not always fundamentally unfair, the court today placed the burden on the defendant, in a collateral proceeding when no objection was made at trial and the issue was not raised on direct appeal, to demonstrate that reversal is required.

The court’s opinion noted four assumed or undecided aspects of this case. Indeed, I think a general theme of October Term 2016 – and possibly the Roberts court overall without Justice Antonin Scalia – is that cases have been decided on narrow grounds whenever possible.

First, the court assumed that the closure in this case was a constitutional, structural, violation. Second, the fact that this assumed public-trial error was not objected to or preserved on direct appeal presents special considerations of “finality.” The court left open whether the analysis would be the same if the error had been objected to and preserved. Third, the court assumed that the lawyer’s failure to object here was an unreasonable professional error.

Fourth and finally, the court assumed without deciding that for a Strickland ineffective assistance claim, prejudice might be shown either by applying the normal test – “reasonable probability that the outcome would have been different” – or by demonstrating fundamental unfairness. The opinion noted that quotations can be found in the Strickland opinion to support either view, and the majority did not settle the difference today because it concluded that Weaver loses either way.

Applying Strickland to this public-trial violation

Kennedy’s opinion pointed out that the constitutional right to effective counsel does not mean a right to a “mistake-free” performance. Instead, even when a lawyers makes errors, a defendant must demonstrate why his lawyer’s errors made an important difference in his case. Moreover, when a courtroom closing is not objected to, the trial court has no opportunity to cure it.  So the court concluded that for this particular structural error, raised in this particular procedural context, the burden to justify reversal of his conviction properly rests on Weaver.

Weaver, however, made no effort below to demonstrate that the result of his trial would have been different had the courtroom been open to his supporters during jury selection, so the traditional test for prejudice under Strickland was not met. In addition, the court concluded that based on the particular facts of Weaver’s jury selection, no “fundamental unfairness” had been shown. Thus the Massachusetts courts were correct in denying relief to Weaver.

Today’s separate opinions

Alito concurred only in the judgement, stating that Strickland supports only one test for prejudice – whether there is a reasonable probability that the outcome would have been different — and that “fundamental unfairness” cannot be argued separately if the traditional Strickland test is not met. This is a narrower reading of Strickland, and the majority expressly left it open. Thomas’ short concurrence noted two of the majority’s “assumptions” and expressed some doubt about them, stating that he “do[es] not read the opinion … to preclude” Alito’s approach. Finally, as noted above, Gorsuch silently joined all three opinions that made up the seven-justice majority. How exactly one can join both Kennedy’s and Alito’s opinions seems a bit mysterious, if collegial.

A brief dissent

Breyer, joined by Kagan, filed a four-page dissent, not focused on the facts of Weaver’s case, but rather objecting to the doctrinal division of structural errors into categories. Echoing Kagan’s questions at oral argument, Breyer criticized the logic of saying that structural errors are those whose effect is “too hard to measure,” and yet demanding that a defendant demonstrate the effect of a particular structural error on the fairness of his trial. Breyer would not “give lower courts the unenviably complex job of deciphering which structural errors really undermine fundamental fairness and which do not,” saying that “the game is just not worth the candle.” But he did not further explain why.

Conclusion

Kennedy’s majority opinion ended with a broad statement of the “unending duty of the judiciary to … find the proper balance” between “fair and just trials … and finality.” By contrast, the four assumptions in his opinion support what I think is a careful analysis of doctrine, narrowly applied to the public-trial right in the context of this case. The court’s opinion will prove useful in the future for analyzing diverse claims of structural error. Happily, it avoids sweeping broadly over questions that might be better worked out by lower courts over time. In addition, the opinion is not dismissive of either the state’s claims or Weaver’s constitutional objections. Instead the majority gives them fair consideration in a detailed way. Some observers will always object to Kennedy’s style and his balancing approach. But in the often overwrought adversarialism of constitutional criminal procedure, the Weaver opinion is refreshingly free of vitriol and bombast.

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Categories: Research

Opinion analysis: Justices uphold convictions in infamous D.C. murder case

Thu, 06/22/2017 - 15:37

This morning the justices upheld the convictions of seven men who had been convicted of the brutal beating, sodomy, and murder of Catherine Fuller, a District of Columbia mother of six, in 1984. Writing for the court in Turner v. United States, Justice Stephen Breyer concluded that even if the prosecutors had given the defense attorneys evidence that would have been helpful to the men, the jurors likely would have reached the same result.

Justice Breyer with opinion in Turner v. U.S. (Art Lien)

The Supreme Court rarely weighs in on cases that are “legally simple but factually complex.” This is in no small part because the relatively few cases that the justices review often make their way to the court after the lower courts have reached different decisions under the same legal principle, and the justices want to make sure that their opinions establish clear legal principles that can govern the thousands of cases argued in the lower courts each year. But “legally simple but factually complex” is exactly how Breyer described the issue before the court today.

Because the government did not dispute that the evidence that had been withheld was favorable to the defendants, the only question before the court, Breyer emphasized, was whether the evidence was “material” – that is, that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” But, Breyer concluded, the men cannot make this showing. The men’s primary argument, he observed, is that the prosecutors should have given them information about the identity of James McMillan, another man who had been spotted in the alley and was convicted of a similar crime seven years later, as well as a statement by Willie Luchie, who walked through the alley around the time of the murder. If they had received that information, the men contended, they could have “challenged the Government’s basic theory that Fuller was killed in a group attack.”

But when the withheld evidence is considered along with the rest of the evidence before the jury, Breyer explained, “it is too little, too weak, or too distant from” the other evidence to have made a difference. The fact that McMillan had been seen in the alley, Breyer reasoned, would only matter if there had not been a group attack. The same is true, Breyer suggested, for “Luchie’s ambiguous statement that he heard groans but saw no one” in the garage where Fuller’s body was found. This is particularly true, Breyer continued, when (among other things) two other men had confessed to participating in the crime and had testified against the defendants in exchange for a shorter sentence, and other witnesses had confirmed parts of that testimony.

Justice Elena Kagan dissented from the decision, in an opinion joined by Justice Ruth Bader Ginsburg. Kagan acknowledged that the court’s “conclusion is not indefensible: The Government put on quite a few witnesses who said that the defendants committed the crime.” But Kagan would have reached a different result, because in her view “the whole tenor of the trial would have changed” if the prosecutors had provided the defense lawyers with the evidence that had been withheld. She explained that the jury could have been presented with two very different cases. In the one that the jury actually heard, she suggested, the defendants had “formed something of a circular firing squad” in which each defendant tried to save himself at the expense of his co-defendants. But if they had received the evidence that the prosecutors had suppressed, she wrote, the defendants could have pulled together to show that someone else – such as McMillan – had actually committed the crime. If they had done that, she concluded, “one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt.”

Given the heavily fact-intensive nature of the case, it’s hard to know exactly why the justices agreed to review it in the first place. The lack of a compelling legal question was apparent to them from the outset: When they announced that they would hear the case on the merits, the justices asked the parties to brief only one, straightforward question: whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over evidence that could exonerate the defendant. Although we may never know for sure, one possibility is that the justices granted review to overturn the convictions because, at least at that stage of the proceedings, the men’s cases seemed so compelling. But on further review, they may have seemed significantly less so – particularly after the oral argument, at which deputy solicitor general Michael Dreeben’s extraordinary command of the facts allowed him to weave a forceful presentation on behalf of the government. The justices often say that oral argument rarely makes a difference in the outcome of a case, but this case may have been the exception.

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Categories: Research

Opinion analysis: To strip citizenship for false statements, government must show that lies would have mattered

Thu, 06/22/2017 - 14:11

In 2000, Divna Maslenjak and her family came to the United States as refugees from the former Yugoslavia, fleeing the civil war in that country. Maslenjak became a U.S. citizen in 2007, but several years later she was stripped of her citizenship and deported – as was her husband – because immigration officials discovered that she had made false statements during her naturalization process. Maslenjak conceded that she had lied, but she argued that she should be able to keep her citizenship because her lies were not material – that is, that they would not have been important to the officials deciding whether to grant her citizenship application. But the federal government countered, and the lower courts agreed, that Maslenjak could lose her citizenship even if her lies did not play any role in the officials’ decision. Today the Supreme Court largely agreed with Maslenjak, holding that her lies can be held against her only if they would have mattered to immigration officials. But given the gravity of her lies, Maslenjak’s victory may not be enough to secure her return to the United States.

Justice Kagan with opinion in Maslenjak v. U.S. (Art Lien)

During meetings with U.S immigration officials in Serbia in 1998, Maslenjak indicated that she and her family would be in danger if they returned to the village in Bosnia where they had lived before the civil war. She also told them that her husband had not returned to a Serb-controlled part of Bosnia with the rest of the family because he feared that he would be forced to serve in the Bosnian Serb army. But her husband had in fact served in the army, in a brigade that had participated in an infamous 1995 massacre of 8,000 Bosnian Muslims. When the federal government later learned of her husband’s role during the civil war, it initiated proceedings to deport him.

In an effort to stave off her husband’s deportation, Maslenjak admitted that she had lied about her husband’s whereabouts during the civil war. And because, in the government’s view, Maslenjak knew when she applied for citizenship that she had lied to immigration officials while seeking refugee status, she was charged with violating a federal law that makes it a crime to knowingly procure U.S. citizenship “contrary to any law.” The lower courts rejected Maslenjak’s argument that she could not be convicted unless her lies were material, and Maslenjak was deported to Serbia last year.

In January, the Supreme Court agreed to hear Maslenjak’s plea, and today it sent the case back to the lower courts, where she will get another chance. In an opinion by Justice Elena Kagan, the court reasoned that the “most natural understanding” of the federal law under which Maslenjak was convicted “is that the illegal act must have somehow contributed to the obtaining of citizenship.”

The government’s argument to the contrary, the court observed, “falters on the way language naturally works.” Imagine, the court suggested, a scenario in which “an applicant for citizenship fills out the necessary paperwork in a government office with a knife tucked away in her handbag (but never mentioned or used).” Although the applicant has violated the law barring weapons in federal buildings, and “has surely done so in the course of procuring citizenship,” the court concluded, she has not obtained citizenship “contrary to law,” because the relationship between the violation and the acquisition of citizenship “are in that example merely coincidental: The one has no causal relation to the other.”

The court also observed that the rule proposed by the government would open “the door to a world of disquieting consequences,” in which a lie “would always provide a basis for rescinding citizenship,” even if the lie merely resulted from “embarrassment, fear, or a desire for privacy.” Indeed, the court suggested, the government’s rule would give “prosecutors nearly limitless leverage” – something about which several justices, in a wide variety of contexts, have expressed concern recently.

The court then turned to how its holding should apply in practice. “To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” In many cases, the court emphasized, this will be an easy task. For example, the court noted, “when the defendant misrepresents facts that the law deems incompatible with citizenship” – such as how much time the citizenship applicant has spent in the United States – “her lie must have played a role in her naturalization.”

But even if the facts concealed by an applicant’s lies would not, standing alone, lead immigration officials to deny citizenship, the court continued, “they could have led to the discovery of other facts which would do so.” And in such cases, the court explained, the government must show both that having accurate information would have led immigration officials to investigate further and that their investigation likely would have led to information that would have disqualified the applicant from citizenship. And even then, the court stressed, the applicant can still defend against denaturalization by showing that she was qualified for citizenship.

The jury that convicted Maslenjak, the court concluded, received the wrong instructions. So although the jury might have convicted her if it found either that her lies would have been a reason for immigration officials to deny her citizenship application or that knowing about those lies would have prompted immigration officials to investigate further and discover a reason to reject her application, it wasn’t asked to consider those possibilities. The justices therefore sent the case back to the lower courts for them to take another look.

Chief Justice John Roberts joined Kagan’s opinion for the court in full, as did Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Neil Gorsuch filed a separate opinion concurring in part and concurring in the judgment – his first while on the court – which was joined by Justice Clarence Thomas. Gorsuch agreed with his colleagues that “the plain text and structure of the statute before us require the Government to prove causation as an element of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization.” But observing that the Supreme Court “often speaks most wisely when it speaks last,” Gorsuch explained that he would not have gone any further than that, and in particular that he would not have provided “guidance” about how the causation requirement should work in practice because the parties had not fully briefed it and the lower courts had not yet weighed in.

Justice Samuel Alito also filed a separate opinion concurring in the judgment. In his view, the federal law under which Maslenjak was convicted does require her lie to have been material, but it “does not require proof that a false statement actually had some effect on the naturalization decision.”

The post Opinion analysis: To strip citizenship for false statements, government must show that lies would have mattered appeared first on SCOTUSblog.

Categories: Research

“Full of Sound and Covfefe”: The Trial of the Weird Sisters

Thu, 06/22/2017 - 13:27

“This is the single greatest witch hunt in Scotland’s history,” declared Deanne Maynard, counsel for the Weird Sisters. So began an evening of jokes perhaps best appreciated by a Washington, D.C., audience. Maynard battled former solicitor general Don Verrilli in the case of The Weird Sisters v. Kingdom of Scotland, based on Shakespeare’s “Macbeth.” The Sisters were challenging their death sentences for their alleged role in Macbeth’s murder of King Duncan before U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer and Judges Sri Srinivasan, David Tatel and Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit.

Deanne E. Maynard (Morrison & Foerster LLP), foreground; Donald B. Verrilli, Jr. (Munger, Tolles & Olson LLP) and Adele El-Khouri (Munger, Tolles & Olson LLP), background; at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

In the lower court, the Sisters had been found guilty of both using witchcraft to solicit Duncan’s murder and aiding and abetting Macbeth in his commission of the crime. Addressing the first accusation, Maynard argued that the Sisters’ prophesying activity was protected by the First Amendment. (11th century Scottish law here looks remarkably similar to that of the 21st century United States.) Maynard proceeded to point to the role Lady Macbeth (“such a nasty woman”) played in convincing her husband to commit the crime. But given that both Macbeths had since perished, King Malcolm needed to “drain the bog” and were using the three vulnerable women as scapegoats.

One underpinning of Maynard’s argument was an inherent sexism in witchcraft proceedings. Maynard, who was assisted by two female associates, pointed out that the three of them could themselves be considered a coven of witches. And when Breyer questioned some of the supernatural accusations, Maynard said point-blank, “You’re a man,” and suggested that Macbeth kept “manterrupting” the Sisters.

Representing the Kingdom of Scotland, Verrilli opened with the assertion that “complaining about a witch hunt doesn’t get rid of a sound legal argument” and that “if someone is complaining about the greatest witch hunt” you can be assured that “something wicked this way comes.”

Verrilli’s argument focused on the inconsistencies in the Sisters’ assertions about their religious practices — are the women witches with a religion or just three sisters who have been unfairly maligned? “It’s like you say something is commerce, but then uphold it as a tax,” Verrilli continued.

Verrilli also questioned the supposed neutral nature of the Sisters’ prophecy to Macbeth that he would one day be king. He noted that “the Weird Sisters appear out of nowhere, like Sean Spicer from the bushes,” as evidence that this was no accident. That would be “pure applesauce,” he continued. Verrilli posited that it wasn’t just the prophecy, but the spell the sisters cast on Macbeth that made them culpable.

Donald B. Verrilli, Jr. (Munger, Tolles & Olson LLP) at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

The panel at times questioned the reliability of Macbeth’s story. “Didn’t Macbeth claim to have the biggest coronation crowd in history?” Millett inquired. And Ginsburg wondered whether the bloody dagger the Sisters allegedly conjured could have been in Macbeth’s mind. Breyer, who spent much of the proceeding confused by Verrilli’s “chestnut argument,” may have been distracted by a phone call he took from the bench in the middle of the session.

When the panel returned their verdict, the justices explained their votes. Ginsburg first delivered the opinion of the court that the women, whom even feminist icon RBG herself accidentally called “witches,” did not aid or abet in the murder. Ginsburg pointed to the historical fear of witches as a reason to burn women.

Srinivasan concurred, noting that the judges should approach their jobs with “empathy,” and harkening back to a time when he used to call his sisters weird, something he now regrets. Millett seemed the most outraged at the lower court’s opinion, noting that when Nate Silver accurately predicts who will be king, he is praised, but when these three women did so, they were convicted. Tatel, who had impressively asked all of his questions in trochaic meter, asserted, still in meter, that although he agreed with the result of the opinion, he differed in his reasoning, suggesting an equal protection argument for overturning the decision. Finally, Breyer, who had served as an off-kilter contrarian during much of the argument, was the lone dissenter, noting that “I don’t understand the chestnut argument, but I sense that it was a very good one.”

Judge Sri Srinivasan, Judges Stephen G. Breyer, Justice Ruth Bader Ginsburg, Judge David S. Tatel and Judge Patricia A. Millett at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

Following the opinion of the panel, we learned the opinion of the audience, who had voted with chips during the intermission. In a lopsided result, the audience agreed with the panel to overturn the conviction of the Weird Sisters.

This mock trial was put on by the Bard Association of the Shakespeare Theatre Company in Washington, where “Macbeth” recently finished its run.

The post “Full of Sound and Covfefe”: The Trial of the Weird Sisters appeared first on SCOTUSblog.

Categories: Research

A “view” from the courtroom: The term’s first bonus day for opinions

Thu, 06/22/2017 - 12:41

Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.

This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.

In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.

Usually, when the justices are prepared to take the bench, they are preceded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.

Today, the chime goes off to signal the start of the court session, and the marshal’s aides are not yet in place. Chief Justice John Roberts is the first one through the middle curtain opening, while the aides scramble in from the side openings. It’s nothing of significance in the great realm of the universe, but just an unscripted moment in an institution that is usually precise and tradition-bound.

The chief justice announces that Justice Elena Kagan has the opinion in Maslenjak v. United States. This case, about a Bosnian Serb woman who had come to the United States as a refugee and who was convicted of lying to the government when she sought citizenship, was the last argued for the term and sparked quite a lively argument.

Kagan explains that under the relevant federal criminal statute, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. This holding rejects the government’s view that the statute requires only a violation in the course of procuring citizenship, regardless of whether the violation made a difference in the decision to grant an application.

She cites the “riddle” from her opinion about a statement that “John obtained that painting illegally, but his unlawful acts did not play any role in obtaining it,” except in her bench statement she substitutes Jane for John.

“You would not have a clue what the statement meant, and you would think it was some sort of riddle,” Kagan says.

She also makes a reference to the fact that under the government’s theory, a long-ago speeding violation could prove problematic. That was a theme raised several times at oral argument by Roberts, who was skeptical of the government and has now joined Kagan’s opinion.

Kagan announces a voting lineup that includes an opinion by Justice Neil Gorsuch, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment, and an opinion concurring in the judgment by Justice Samuel Alito. Gorsuch’s written concurrence is his first of that variety.

Next up is Justice Stephen Breyer with a 6-2 opinion in Turner v. United States. This case involves a notorious murder of a woman in the District of Columbia in 1984, and whether certain evidence the government had withheld from the defense was “material” under Brady v. Maryland.

This was argued for the federal government by Dreeben, who had seemingly mastered every fact in this complex, multi-defendant case.

Breyer describes some of the agreed-upon facts of the attack on the victim, “which was pretty gruesome,” and goes into some of the details of the “group attack theory” being challenged by some of the defendants.

“It gives you a flavor for it,” he says. “You’d have to look at the record.”

But the withheld evidence is “too little, too weak, or too distant to undermine the group attack theory,” Breyer says.

Kagan has filed a dissent that is joined by Justice Ruth Bader Ginsburg, and Gorsuch did not participate.

Justice Anthony Kennedy has the last opinion on a day devoted to the criminal law. It’s in Weaver v. Massachusetts, about a defendant’s challenge to a decision to close the courtroom to the public during two days of jury selection.

We aren’t aware in the courtroom that the “bench opinion” being distributed once Kennedy starts reading spells the state as “Masssachusetts.” It is quickly corrected in the online version.

Kennedy explains the doctrines at issue: structural error and ineffective assistance of counsel. The defendant’s counsel at trial did not object to the courtroom closure during voir dire.

Kennedy’s opinion holds for the court that, among other principles, because the defendant has not shown a reasonable probability of a different outcome but for his counsel’s failure to object to the courtroom closing or that his counsel’s shortcomings led to an unfair trial, he is not entitled to a new trial.

Amid a somewhat complicated lineup in a 7-2 judgment, Gorsuch has joined Kennedy’s opinion, a concurring opinion by Thomas, and an opinion concurring in the judgment by Alito. Breyer has written a dissent, joined by Kagan.

With that, Roberts turns to Talkin, the marshal, who bangs her gavel and announces that court will reconvene Friday at 10 o’clock. We think the marshal’s aides will be in place for that.

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Categories: Research

Symposium: Most important free speech case in many years

Thu, 06/22/2017 - 11:52

Hugh C. Hansen is a professor of law at Fordham University School of Law. He is the founder and director of the Fordham Conference on IP Law and Policy and the Fordham IP Institute. He submitted amicus curiae briefs in support of Simon Tam in both the U.S. Court of Appeals for the Federal Circuit and the Supreme Court.

Matal v. Tam is one of the most important First Amendment free speech cases to come along in many years. The result is not much of a surprise. For the record, on October 24, 2016, I tweeted: “TAM prediction: from doctrinal, policy, realist analysis + cert before 4 cir op = 2A ‘disparage’ violates 1st Amend; ‘scandalous’ reserved.” What was a surprise was how strongly all eight justices viewed the applicable free speech protection.

Justice Samuel Alito’s opinion meticulously addressed all arguments, making sure there were no loose ends to clutter future cases. His style was critical and even mocking. He left no doubts on the merits of the free speech issues. Justice Anthony Kennedy’s opinion took more of a Gordian knot approach. No need to worry about untying various threads and arguments; viewpoint discrimination allows us to just cut right through them. The purpose of both opinions appeared to be to make sure that there was no way around the Supreme Court’s conclusions in the future. The court also seemed to take offense at the government’s and amici’s arguments as to why there was no viewpoint discrimination. The opinions together amounted to a serious defeat for the government and its amici supporters.

The government and amici put up a strong effort defending Section 2(a) of the Lanham Act. This in part derived from their admirable concern for the feelings of minority groups and the value of Section 2(a). This is the reason the Patent and Trademark Office in effect rewrote the Section 2(a) disparagement provision, years after passage of the act in 1946, to how it is applied today. There is no problem with any of this until someone’s free speech rights become involved. One reason the government and amici are so emphatic in their defense of Section 2(a) is perhaps that free speech took no serious part in their consideration of the issues.

If so, they are not alone. Free speech has never had many true friends. It receives plenty of lip service. We are generally in favor of free speech when we like the speech for which protection is sought but lose interest in it when we do not.

In his 1919 dissent in Abrams v. United States, Justice Oliver Wendell Holmes extolled the idea that freedom of speech in the First Amendment is based upon a marketplace of ideas. No ideas are sacrosanct and all have to withstand scrutiny and debate. Truth will win out in this process and democracy will benefit.

Although that is a very worthy ideal, it is difficult to find any such marketplace today. Newspapers are in decline. Television news shows are divided ideologically, with viewers driven by confirmation bias. The Internet is primarily a gathering place for digital mobs ready to tar and feather those who hold opposing views.

The rest of us have gathered not in the public square but in private groups to which admission is dependent upon adherence to politically correct orthodoxy. It is safe inside these groups, where shared views are sacrosanct and never have to withstand scrutiny. Opposing views are there too, but only to be mocked from a distance.

In this environment, free speech is permitted for somebody with the same views but is disdained when it comes to opposing ones. Political correctness is the new tribalism.

It was upon this highly fraught platform that the government argued that it should be able to enforce politically correct views through Section 2(a). It tells those that are distressed, and are in the right private group, that it will challenge offensive marks on their behalf or allow the distressed to do it themselves. It will not debate these marks in the public square but rather seek to exclude them from it.

Simon Tam’s mark, which encapsulates the group’s controversial ideas, is barred because of those ideas. Yet it is such use of expressive marks that today — ironically, considering this case — are the best hope to keep alive a marketplace of ideas. No private group can exclude these ideas in an effort to insulate themselves from exposure. Moreover, people receive access to the mark without warning and in neutral territory. They are in a setting where they might actually consider the ideas on their merits – before they can jump-start their ideological protective screening.

In sum, I think that court saw that the use of marks for expressive content provides an important nascent marketplace for the reception and debate of ideas. The government’s construction of Section 2(a) effectively stifles this marketplace.

I think it that might be the reason the court’s opinion is so bold and unyielding. The court realizes that there is a serious fight for free speech and this is the beginning of an effort to free it from current cultural confines. (In any case, that is my personal view, and you can’t criticize it because it might seriously hurt my feelings.)

Well, enough of that. What does this opinion then mean for related issues? The most obvious issue concerns the constitutionality of the Section 2(a) bar on “scandalous and immoral” marks. The government took the position after the en banc decision of the U.S. Court of Appeals for the Federal Circuit that these were covered as controlled by that decision. Yet it reserved the right for the solicitor general to distinguish this case and argue that the PTO can still bar such marks from registration. That issue is currently being litigated in In re Brunetti in the Federal Circuit.

Analytically, this is an easy issue. Matal v. Tam controls. But first let’s look a little at the history of case law on the issue. The major case was In re McGinley (C.C.P.A. 1981). There the precursor to the Federal Circuit held that the Section 2(a) ban was constitutional. It reasoned that PTO’s refusal to register the appellant’s mark did not affect the right to use it and that no tangible form of expression was suppressed. Since then three panels of the Federal Circuit and the U.S. Courts of Appeals for the 1st, 3rd and 5th Circuits have all followed that reasoning.

McGinley was a mainstream (and Main Street) approach to the First Amendment. It was not an outlier. It was decided the way most if not all courts would have decided it. This is especially true for the Federal Circuit, the overseer/guardian of the PTO’s trademark registration system.

“Disparagement” and “scandalous and immoral” provisions are similar but different. The latter does not ring First Amendment free-speech bells with most people. This is because (1) the marks at issue are smutty, vulgar or worse and not intended to send any larger expressive message; (2) registration is not perceived as economically necessary for these mark owners; (3) when there are serious free speech issues they can be ameliorated on a case-by-case basis by careful or limiting application of the statutory tests; (4) this provision provides a desirable civilizing effect on what could be registered as marks; and (5) courts had already made Section 2(a) more First Amendment-friendly through a construction that effectively eliminated “immoral.”

On the other hand, the result of declaring a First Amendment violation would include: (1) disruption of the status quo – a removal of provisions in the law since 1905; (2) outrage in Congress and the public; and (3) a potential smut-bath of new applications.

For most who would balance these policies and effects, the choice is not difficult. And balancing is what courts do. The fact that neither the en banc Federal Circuit nor the Supreme Court addressed this question indicates the lack of appetite for deciding it. I think some courts might still try to find ways to uphold the “scandalous and immoral” provision. But this time the whole world will be watching and, ultimately, I think they will conclude it is covered by Matal v. Tam. And they can pass on the blame by saying “the Supreme Court made me do it.”

What is more interesting are the suggestions by some very smart people that this case threatens the viability of the tarnishment provision in dilution law and even the whole law of dilution. I don’t think that is the case for several reasons. First, the Supreme Court did not actually reach its result Matal v. Tam by applying or construing language from prior cases. It reached it by looking at public policies, possible conflicts in those policies, and other real-world issues. So the court will not seek to derive an answer on dilution and the First Amendment from language in Tam. Even if it did, I am doubtful it would reach the same conclusions as those that have been suggested.

Furthermore, the decision in Tam was based in part on the fact that the “disparagement” provision had nothing to do with the goals of trademark law. The court in fact was supportive of trademark law, noting that the “’Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers.’” Dilution’s law whole purpose from the beginning was to protect the goodwill of the mark owner. It protects against the “whittling away” of a mark’s goodwill by unauthorized users. It also protects against increased consumer search costs. Tarnishment protects the goodwill of a product’s mark by preventing it from being associated when there is no likelihood of confusion with inferior or undesirable products. And finally, it is highly unlikely that a court will feel comfortable eliminating state dilution laws that are over 65 years old or federal laws, whatever the reason.

Free speech up until now has been a hothouse flower. It was beautiful to look at in its protected state, but out in the elements it rarely survived, let alone thrived. Matal v. Tam creates the possibility of breaking down those glass walls. The question is whether that is premature or whether free speech can survive outside on its own. I guess that will depend to some extent on what you and I do.

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Categories: Research

Live blog of opinions (Update: Completed)

Thu, 06/22/2017 - 09:30

We live-blogged this morning as the court released opinions. The transcript is available at this link.

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Categories: Research

And then there were 12 – the remaining decisions

Thu, 06/22/2017 - 08:12

The justices are expected to take the bench today at 10 a.m. to issue opinions in argued cases. There are 12 decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those 12 cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

 Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

 Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in a decision by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

March sitting (March 20 to 29)

Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?

The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.

The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.

Lee v. United States: This is yet another installment in the series of “crimmigration” cases ” – that is, cases at the intersection of criminal law and immigration –  at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.

The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.

Turner v. United States: The crime at the heart of this case (along with Overton v. United States, with which it was consolidated) is the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case are a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.

Kennedy has not yet written for March, so at least one of these three remaining decisions will almost certainly be his. We expect 11 opinions from the March sitting, and Alito has already written two opinions from March, which means that another justice (either Kennedy or someone else besides Alito) will also likely write two opinions for March.

April sitting (April 17 to 26)

Perry v. Merit Systems Protection Board: Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.

California Public Employees’ Retirement System v. ANV Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand..

Weaver v. Massachusetts: In this case, the justices are considering whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation. The issue arises in the case of Kentel Weaver, who was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston and eventually confessed. However, Weaver’s case went to trial, with a jury pool of approximately 90 potential jurors. And when Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

Maslenjak v. United States: The petitioner in this case is 53-year-old Divna Maslenjak, an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia. Maslenjak became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Maslenjak acknowledges that she lied to U.S. immigration officials, but she argues that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. The justices will decide whether that interpretation of U.S. immigration law is correct.

There are six opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, nor have Kennedy, Breyer or Kagan.

The post And then there were 12 – the remaining decisions appeared first on SCOTUSblog.

Categories: Research

Government responds in travel ban litigation

Wed, 06/21/2017 - 16:49

This morning the Trump administration responded to yesterday’s brief by the state of Hawaii, which urged the justices to stay out of the dispute over the March 6 executive order, often known as the “travel ban,” which put a hold on visas for travelers from six Muslim-majority countries. Although Hawaii argued yesterday that a June 14 memorandum by the president instructing federal agencies to begin a review of the procedures used to vet and approve visa applications undermined the rationale for the travel ban and eliminated any need for the Supreme Court to step in, today the federal government attempted to refocus the debate. Supreme Court review of the lower-court decisions blocking the travel ban is essential, the government argued, because those decisions interfere with the president’s determination that the travel ban is necessary to protect the national security of the United States.

In yesterday’s filing, Hawaii contended that the June 14 memorandum demonstrated that the travel ban is no longer necessary. The provisions of the president’s March 6 executive order requiring the government to review its procedures for vetting visa and refugee applications – the justification for the ban – will go into effect at the end of this week, but the visa and refugee programs themselves remain on hold until the lower courts’ orders are lifted. Because the government’s review will almost certainly have been completed by the fall, when the justices would hear oral argument in the travel-ban litigation, the rationale underlying the ban will no longer exist, and therefore there is no need for the Supreme Court to weigh in on the ban’s legality.

The government counters that, to the extent there is any “disconnect” between the different provisions of the travel ban, there is an easy way to remedy it: Allow the whole executive order to go into effect, so that the freeze on visas and refugees “can operate in tandem with the parallel reviews, just as the Order envisions.” The government also maintains that other arguments against Supreme Court review are contradictory at best, because the state is arguing both that the government should have moved faster to bring the dispute to the Supreme Court and that the case still isn’t ready for the justices to step in. The important point is that the “government has moved this case through the courts with urgency and care at every stage.”

The government closes its brief by imploring the justices both to review the lower-court decisions putting the ban on hold and to allow the ban to go into effect while they conduct that review. But at the very least, the government suggests, the justices should substantially narrow the scope of the lower court’s order blocking the implementation of the ban so that it applies to only a few people – specifically, the mother-in-law of a Hawaii man who is challenging the ban and any students from the affected countries who plan to attend school in Hawaii. The justices will consider all of these requests at their private conference tomorrow and could announce their decision as early as next week.

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Categories: Research

Petitions to watch | Conference of June 22

Wed, 06/21/2017 - 11:47

In its conference of June 22, 2017, the court will consider petitions involving issues such as whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated and whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement; and whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”

Bay Point Properties, Inc. v. Mississippi Transportation Commission

16-1077

Issues: (1) Whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated; and (2) whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement.

Mathis v. Shulkin

16-677

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred by creating a presumption of competency for all U.S. Department of Veterans Affairs medical evaluators, (including physician assistants, nurses and other non-physician health practitioners) to provide an expert opinion on any medical issue, thereby placing the burden on disabled veteran claimants, most of whom are pro se and many of whom suffer “from very significant psychiatric and physical disabilities,” to rebut the presumption by raising a competency objection, by ascertaining evidence of the evaluator’s lack of qualifications, and then by articulating specific reasons in support of the competency challenge.

Digital Realty Trust, Inc. v. Somers

16-1276

Issue: Whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”

Coutts v. Watson

16-1075

Issue: Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.

Bourne Valley Court Trust v. Wells Fargo Bank, N.A.

16-1208

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Nevada’s statute authorizing nonjudicial foreclosure of association liens, Nev. Rev. Stat. §§ 1116.3116 et seq., was facially unconstitutional under the due process clause for not requiring direct notice to junior lienholders, when the only state action involved was the enactment of the statute regulating the private sale.

Johnson v. Alabama 16-7835

Issue: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

Pavan v. Smith  16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

Sessions v. Binderup 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

Binderup v. Sessions 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

Peruta v. California 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

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Categories: Research

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