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Court puts partisan gerrymandering rulings on hold

May 24, 2019 by admin Leave a Comment

In the next month or so, the Supreme Court is expected to issue its decisions in a pair of cases challenging federal congressional districts in North Carolina and Maryland as the product of unconstitutional partisan gerrymandering. When the justices heard oral argument in the two cases in late March, a key issue was whether courts should review partisan gerrymandering claims at all or should instead stay out of them, leaving the issue to politicians and the political process. Two weeks ago, Republican officials from Ohio and Michigan today asked the Supreme Court to put lower court rulings that found partisan gerrymandering in those states on hold while they appeal. Today the Supreme Court granted those requests, in a series of brief unsigned orders that were fairly unsurprising in light of the pending North Carolina and Maryland cases.

Republicans in Ohio had come to the Supreme Court on May 10, one week after a three-judge federal court struck down the state’s federal congressional map and ordered the state’s general assembly to come up with a new plan by June 14. One group of officials, led by Rep. Steve Chabot, characterized the lower court’s ruling as having “recognized a constitutional claim to vindicate partisan buyer’s remorse” after “half the Democratic members of the Ohio legislature” voted to support the plan.

The officials stressed that the Supreme Court is likely to take up their appeals, because cases involving redistricting are among the narrow set of federal cases with an automatic right of appeal from the three-judge district court to the Supreme Court. Moreover, they added, if the justices eventually rule in the North Carolina and Maryland cases that courts have no role in partisan gerrymandering cases, there would be no need to draw new maps. But even if the justices were to rule for the challengers in the North Carolina and Maryland cases, they concluded, the lower court would have to reconsider the Ohio case “in light of whatever standard” the Supreme Court eventually establishes in those cases.

Republicans in Michigan came to the Supreme Court the same day, asking the justices to block an April 25 order that barred the state from using portions of its legislative and congressional maps on the ground that they too were the product of unconstitutional partisan gerrymandering by Republicans. The officials emphasized that the lower court’s order – which would require the state to draw new maps by August 1 – was “on the brink of throwing Michigan’s political system into unnecessary chaos” and would require the state to “devote massive resources,” which would ultimately come out of the public purse, to comply.

All four requests went first to Justice Sonia Sotomayor, who handles emergency appeals from the geographic region that includes Ohio and Michigan. Sotomayor referred them to the full court, which today granted them. Each of the court’s orders indicated that the lower court’s orders would be put on hold pending either “the timely filing and disposition of an appeal” to the Supreme Court or “further order of this Court.”

This post was originally published at Howe on the Court.

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Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent

May 24, 2019 by admin Leave a Comment

Anita S. Krishnakumar is the Mary C. Daly Professor of Law and the Associate Dean for Faculty Scholarship at St. John’s University School of Law.

The U.S. Supreme Court’s decision in Franchise Tax Board of California v. Hyatt has received significant attention for its overruling of Nevada v. Hall, a 40-year-old precedent that held that states lack sovereign immunity in each other’s courts. Observers have been quick to quote the penultimate sentence of Justice Stephen Breyer’s dissent (“Today’s decision can only cause one to wonder which cases the Court will overrule next”) and point to Hyatt as a harbinger that Roe v. Wade and other similar high-stakes constitutional precedents may be next in line for abrogation.

Overruling prior judicial decisions is a big deal; the doctrine of stare decisis directs judges, including Supreme Court justices, to follow prior decisions even when they think those prior decisions are wrong. The Supreme Court is not supposed to overrule a prior ruling unless at least one of several conditions is met: The decision is unworkable and lower courts have found it difficult to administer; it rests on outdated facts; or it is inconsistent with later legal developments, such as other judicial decisions or new laws passed by the legislature. The court is also not supposed to overrule precedent that parties have relied on in structuring their lives.

Despite all of the above, the Supreme Court’s decision in Hyatt should not have been surprising — because it continues a jurisprudential trend that extends beyond the court’s constitutional cases and that began more than a decade ago. Indeed, in a recent article titled “Textualism and Statutory Precedents,” I note that the court’s textualist justices have proved remarkably willing to abandon stare decisis and argue in favor of overruling established statutory interpretation precedents — even though such a practice is difficult to reconcile with textualism’s core aims of promoting clarity and stability in the law. The article suggests that textualist justices’ proclivity to overrule may be connected to two related features of modern textualism: (1) the oft-unspoken predicate assumption that there is a singular “correct answer” to every interpretive question; and (2) the political reality that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order — including outmoded precedents reached through the use of illegitimate, atextual interpretive resources. Both of these observations apply equally to constitutional interpretation; in fact, they may apply even more powerfully in the constitutional context, where the stakes are higher and Congress cannot step in to correct an incorrect interpretation.

Let me expand on each of these observations briefly. Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question — and there is some evidence that they tend to find a plain meaning more often than do nontextualist jurists. As the late Justice Antonin Scalia and co-author Bryan Garner put it in a book designed to serve as a primer on the interpretation of legal texts: “[M]ost interpretive questions have a right answer. Variability in interpretation is a distemper.” This assumption, which I have called the “correct answer mindset,” may have an underappreciated side effect for those who subscribe to it. That is, a belief that all interpretive questions have a single correct answer can make it especially difficult for textualist jurists to accept the idea that an incorrect statutory or constitutional interpretation should be left in place simply because it was first in time. As a result, the famous tenet that “in most matters it is more important that the applicable rule of law be settled than that it be settled right” may prove challenging for textualists to adhere to in practice. Justice Clarence Thomas in particular seems to have a difficult time reconciling the “correct answer” mindset with the doctrine of statutory stare decisis: He regularly has authored opinions that advocate overruling precedents because they are simply “wrong” — and this argument has featured prominently in a number of cases in which he alone has voted to overturn a statutory precedent.

Textualist jurists’ readiness to overturn precedents may also be explained, in part, by an underappreciated background attribute — that the most committed among them see themselves as “revolutionaries” seeking to reinvent the judiciary’s approach to interpreting statutes and the Constitution. Many served as legal advisors to Republican presidents prior to joining the bench, and some played key roles in selecting and vetting judicial nominees who could be counted on to follow specific jurisprudential approaches. As judges themselves, they now are on a mission to reshape the way that courts construe both the Constitution and statutes — championing an originalist approach to constitutional interpretation, and a textualist approach to statutory interpretation. Given their revolutionary mission, these jurists are perfectly willing to overrule past precedents — which, in their view, not only are erroneous but were decided using interpretive methods that these jurists consider illegitimate and, indeed, took office intending to overthrow. In other words, rejecting old precedents does not bother these textualist revolutionaries because it is part and parcel of their agenda to depose the old jurisprudential regime.

Whereas some state courts appear to be comprised of a solid bloc of jurists who fit this “revolutionary” bill, the justices on the U.S. Supreme Court seem to fall along a scale, or spectrum, in their commitment to a textualist-originalist revolution. At one end of the spectrum is Thomas, who regularly calls for overruling both statutory and constitutional precedents. Scalia was next on the spectrum, with Justice Samuel Alito and Chief Justice John Roberts a little further down the scale, along with former Justice Anthony Kennedy. Although it is too early to make definitive assessments, Justice Neil Gorsuch appears to be closer to Thomas’ end of the spectrum than to Alito’s or Roberts’ end, and Justice Brett Kavanagh may be as well. This now gives the court at least two solid revolutionaries and a five-justice majority that is either strongly originalist and textualist or at least originalist- and textualist-leaning.

When similar majorities have overtaken state courts in the recent past, precedents have been upended with notable alacrity. In Michigan, for example, when a textualist majority was appointed to the state supreme court in 1998-1999, the court rapidly overruled numerous statutory precedents on the ground that the precedent interpretations were clearly “erroneous.” Indeed, during the newly constituted Michigan Supreme Court’s first five years (2000-2005), it overruled 61 precedents — compared to only 18 overrulings in the previous five-year period.

In short, we have heard this tune before from committed textualist and originalist jurists: Precedents that a newly minted majority deems clearly “incorrect” are fair game for a quick reversal, irrespective of stability and rule-of-law concerns. Thomas’ decision in Hyatt fits within this framework, in that the five justices who voted to overrule did so on the grounds that Nevada v. Hall was clearly “erroneous” and therefore undeserving of adherence. Moreover, the majority opinion contains language suggesting that its constitutional reading is consistent with an originalist interpretive methodology (“Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.”). In the textualist-originalist justices’ view, such certainty that a precedent got the constitutional question wrong provides sufficient reason to overrule, no matter how longstanding or settled the original decision. (“Stare decisis does not compel continued adherence to this erroneous precedent.”) Indeed, Thomas’ opinion laid bare the textualist-originalist justices’ jurisprudential priorities when it dismissed the plaintiff’s reliance-interest argument with the cursory comment that “in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question.” In other words, stability and predictability — and fairness to litigants who relied on the old rule established by the existing precedent — are secondary to accuracy, or the importance of getting to the “correct answer.”

Prior to 2018, the textualist and textualist-leaning justices on the Roberts Court, led by Thomas, called for overruling several statutory and constitutional precedents — but they only occasionally succeeded in garnering the votes necessary to overrule. Now that the court’s composition has changed — and at least one more seemingly committed textualist-originalist revolutionary has joined the court — it seems likely that we can expect more constitutional and statutory precedents that do not comport with these justices’ preferred originalist-textualist interpretive methodologies to be overruled, perhaps in quick succession.

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Empirical SCOTUS: So happy together

May 23, 2019 by admin Leave a Comment

With many decisions still to come in the next month or so, the Supreme Court has already started to define itself in the post-Kennedy era. Certain patterns have emerged in the justices’ voting that distinguish this court from past courts. We are also beginning to see how the newest justices and President Donald Trump’s appointees – Justices Neil Gorsuch and Brett Kavanaugh — are in some ways similar and in others quite distinct.

This term began with significant expectations among conservatives and liberals alike that the Supreme Court would push far to the right. Although such expectations were well-founded, they have not exactly panned out, at least so far. Of the eight 5-4 votes the justices have had in argued cases so far this term, the four liberals have only been in dissent in four, or 50 percent, of them. This might not showcase the power of a conservative bloc vote in the same manner as some expected. Gorsuch, Kavanaugh and Chief Justice John Roberts have also all aligned with the liberal justices in close decisions. This lack of conservative cohesion, especially between Trump’s nominees, has struck some observers as somewhat surprising (although others, like Professor Jonathan Adler, seem less shocked by it).

The numbers reinforce the proposition that Kavanaugh and Gorsuch have not been in consistent agreement so far this term. In fact, if they continue at this rate, they will vote together the least frequently of any two justices in their first terms together appointed by the same president going back to President John F. Kennedy. (In the graphs below, Justice Clarence Thomas’ first full term is treated as 1991. Justice John Paul Stevens is not included because he was President Gerald Ford’s only addition to the court. These statistics are based on whether the justices voted in the same direction or not and do not account for differences through concurrences.)

Click to enlarge.

At 72.73 percent agreement, the Gorsuch-Kavanaugh pairing is almost five percentage points lower than the duo with the next least agreement, Justice David Souter and Thomas, a pair who ended up on opposite ideological poles of the court. Although the same is not expected for Gorsuch and Kavanaugh, this early divergence may foreshadow downstream differences between the two.

The top agreeing pair currently sits on the liberal end of the court. This is based on the voting agreement between Justices Sonia Sotomayor and Elena Kagan when Kagan started as a justice in the October 2010 term.

Justices’ first terms on the Supreme Court do not always dictate how well they will agree in the future, however. Some of this might be attributed to the “Freshman Effect”: Among other things, justices are thought to vote with the court’s majority more frequently in their first terms to avoid making early waves on the bench.

If we compare the Gorsuch-Kavanaugh agreement with the agreement levels of the other justice pairs across their careers on the court, this pair falls to the low end of the list but does not have the lowest agreement of any justice pair. In the figure below, the first column shows justice pair agreement across the justices’ careers on the court, the second column shows the difference between the pairs’ agreement in their first term and in the rest of their time together on the court, and the third column shows the number of total career votes the justices had in the same cases.

Click to enlarge.

Most of the justice pairings had slight differences in agreement levels from their first terms on the court. Four pairs that had significant disparities were Chief Justice Warren Burger and Justice Harry Blackmun (they voted together 33.45 percent more frequently in their first term together than across their entire careers), Justices Antonin Scalia and Anthony Kennedy, Blackmun and then-Justice William Rehnquist (later chief justice), and Souter and Thomas. Time will tell if Gorsuch and Kavanaugh end up toward the top or bottom of these percentages and to what extent their career numbers differ from those in this term, their first together on the court.

A third way to look at the justice pairs is by how frequently they vote together in the court’s closest decisions, those decided by a 5-4 vote. The graphs below show the agreement levels in the column on the left and the percentage difference in agreements in their 5-4 votes from all of their votes together (The differential column does not include a bar for Kavanaugh and Gorsuch because the term is not yet complete, but their percentage for all votes is quite similar to that of their 5-4 votes.).

Click to enlarge.

So far, Kavanaugh and Gorsuch fall to the middle of this list based on agreement in 5-4 decisions. Two pairs with the highest levels of agreement in 5-4 decisions – Justice Samuel Alito and Roberts, and Sotomayor and Kagan — are at the top of this list. Even though both pairs are at the top, their voting agreements in all cases are actually higher in the aggregate than in their 5-4 decisions. On the other end of the spectrum, even though Justices Arthur Goldberg and Byron White and Thomas and Souter had low overall relative voting-agreement rates, their agreement in 5-4 cases was substantially lower.

We gather a different perspective on the Supreme Court when we slice the justices as sets of four rather than of two. Here we see how the court’s liberals have voted together with a much higher frequency than any combination of the five more conservative justices on the court. The next figure focuses on these four justice groupings for this term and looks at all votes in the first column, 5-4 votes in the second column, and the percentage of all 5-4 votes when a coalition was in dissent in the third column.

Click to enlarge.

The liberals were in voting agreement over 16 percent more of the time so far this term than any combination of the more conservative justices. The liberals’ agreement rate actually drops a bit for 5-4 decisions. (A good example of surprising voting coalitions that led to these fractures is Stokeling v. U.S., in which Roberts was in dissent with all the liberals except for Justice Stephen Breyer, who was in the majority with the remaining four conservatives.) The conservative grouping with the lowest voting-agreement frequency so far this term is the one composed of the justices aside from Kavanaugh, although Kavanaugh, Gorsuch, Roberts and Thomas have voted together in less than 70 percent of the court’s decisions so far this term. The coalitions’ agreement levels in 5-4 dissents are also notable, with 50 percent or four of eight of the dissents coming from the liberal bloc, and 25 percent or two of eight from Kavanaugh, Roberts, Alito and Thomas.

One final notable feature this term has been Kavanaugh’s frequency in the Supreme Court’s majority. Kennedy was in the majority more than any of the other justices on the court between the 2010 and 2016 terms with a frequency of over 90 percent in all terms except for 2014. So far this term, Kavanaugh is the only justice who has been in the majority in over 90 percent of the cases in which he has voted.

Click to enlarge.

Kavanaugh has been in the majority more frequently than any of his conservative counterparts, including Roberts, who many were projecting to be the new center justice on the court. Interestingly, three of the five more conservative justices — Alito, Gorsuch and Thomas — have the lowest frequencies in the majority so far this term.

Even looking at the other justices’ first full terms (Thomas in 1991, Alito in 2006 and Gorsuch in 2017), Kavanaugh would have the highest frequency in the majority if he kept this rate up for the remainder of the term.

Click to enlarge.

Roberts is the only sitting justice with over 90 percent frequency in the majority in his first full term on the court.

With 34 decisions still outstanding, the court may very well move in different directions at the end of this term. At this juncture, however, few could likely say with confidence that they predicted Kavanaugh and Gorsuch would vote in opposing directions as frequently as they have, that Kavanaugh would be in the court’s majority as often as he has been, or that both Gorsuch and Kavanaugh would act as a swing vote with the liberals in a 5-4 decision.

This post was originally published at Empirical SCOTUS.

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Georgetown Supreme Court Institute seeking new director

May 23, 2019 by admin Leave a Comment

The Georgetown University Supreme Court Institute (SCI) is seeking applicants for the position of director. SCI’s principal function is to provide moot courts to attorneys who will argue in the Supreme Court. The director’s principal role is to organize, participate in and monitor those moots courts. Substantial experience as an appellate advocate is required. The job posting, with directions on how to apply and a link to submit a cover letter and resume, is available at this link.

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Relist Watch

May 23, 2019 by admin Leave a Comment

John Elwood reviews Monday’s relists.

Congress is fighting with the executive branch to try to obtain information this week. But here at Relist Watch, we’re just giving the stuff away.

A lot of throughput this week, as the Supreme Court disposed of five relists.

Most puzzling is City of Newport Beach, California v. Vos, 18-672, which asked whether the Americans with Disabilities Act requires law-enforcement officers to provide accommodations to armed, violent and mentally ill suspects as they bring them into custody. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted, and many thought the court was looking to finally resolve the question. Newport Beach had been relisted four times, suggesting that one of the justices at least had been exploring a dissent; perhaps he or she was talked out of it.

The Court decided that one-time relist Shabo v. Barr, 18-827, was not the vehicle it was looking for to decide an acknowledged circuit split on an important and recurring question: Whether courts of appeals have jurisdiction to review factual findings underlying denials of withholding (and deferral) of deportation in immigration cases.

Santos v. United States, 18-7096, is the Armed Career Criminal Act case in which the government confessed error. The court did as the government recommended and granted the petition, vacated the judgment below and remanded for reconsideration of the government’s position. Justice Samuel Alito dissented, joined by Justice Clarence Thomas, saying that although the court might have had its doubts about the correctness of the judgment, they “share[d] no such doubt” about the validity of the defendant’s conviction.

Speaking of dissents: The court denied review in five-time relist Daniel v. United States, 18-460, the case seeking to revisit the oft-criticized Feres doctrine that bars servicemembers, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act. Thomas dissented. He argued that “Feres was wrongly decided.” And he claimed that Feres was having a distorting effect on the law because the desire to allow relief to members of the military has led the court in other cases to “twist[] traditional tort principles to afford them the possibility of relief.” He was referring, of course, to Air & Liquid Systems Corp v. DeVries, which held that an equipment manufacturer could be sued for liability for illness caused by asbestos the Navy had added to the equipment, and in which Thomas dissented.

And that is to say nothing of the grant in Ritzen Group Inc. v. Jackson Masonry, LLC, 18-938. No, really – we’re going to say nothing about it. You can click on the hyperlink if you want to be reminded that the case involves whether an order denying a motion for relief from the automatic stay in bankruptcy is a final order subject to appeal. You aren’t going to hear it from me.

That brings us to this week’s new relists. Both Hernandez v. Mesa, 17-1678, and Swartz v. Rodriguez, 18-309, involve questions of liability for American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. The court first took Hernandez in 2016 to resolve whether a cross-border shooting violated the victim’s Fourth Amendment rights, and whether the agent would be entitled to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights. Four months after argument, the court basically punted; it vacated the decision below and remanded for further consideration in light of the recently decided Ziglar v. Abbasi, which tightened the standards for recognizing a federal cause of action under Bivens v. Six Unknown Named Agents.

Now Hernandez is back, accompanied by another case that raises the same issue – Swartz. The en banc U.S. Court of Appeals for the 5th Circuit held in Hernandez that a Bivens remedy should not be extended to a claim arising from an injury to a foreign citizen in foreign territory. But a divided panel of the U.S. Court of Appeals for the 9th Circuit held in Swartz that it should. The court called for the views of the solicitor general, who argues that certiorari “is warranted to resolve the conflict on that important question and to provide the lower courts additional guidance after this Court’s decision in Ziglar v. Abbasi.” The government says that Hernandez is the better vehicle, because it addressed whether a Bivens remedy is available for both Fourth and Fifth Amendment claims, and Swartz only addressed Fourth Amendment claims. The odds of a grant are quite high after the solicitor general as amicus recommends review.

That’s all for this week. Thanks to Tom Mitsch for compiling the relists.

New Relists

Hernandez v. Mesa, 17-1678

Issues: (1) Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) whether, if the federal courts do not recognize such a claim, the Westfall Act violates the due process clause of the Fifth Amendment insofar as it pre-empts state-law tort suits for damages against rogue federal law-enforcement officers acting within the scope of their employment for which there is no alternative legal remedy. CVSG: 04/11/2019.

(relisted after the May 16 conference)

Swartz v. Rodriguez, 18-309

Issues: (1) Whether the panel’s decision to create an implied remedy for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics in the new context of a cross-border shooting misapplies Supreme Court precedent and violates separation-of-powers principles, when foreign relations, border security and the extraterritorial application of the Fourth Amendment are some of the special factors that counsel hesitation against such an extension; and (2) whether, if the above “antecedent” question is answered in the negative, Agent Swartz is entitled to qualified immunity because there is no clearly established law applying the Fourth Amendment to protect a Mexican citizen, with no significant connection to the United States, who is injured in Mexico by a federal agent’s cross-border shooting. CVSG: 04/11/2019.

(relisted after the May 16 conference)

Returning Relists

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4, January 11, January 18, February 15, February 22, March 1, March 15, March 22, March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; now held)

Trump v. NAACP, 18-588

(relisted after the January 11 conference; now held)

Nielsen v. Vidal, 18-589

(relisted after the January 11 conference; now held)

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9 and May 16 conferences)

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9 and May 16 conferences)

al-Alwi v. Trump, 18-740

Issues: (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

(relisted after the May 9 and May 16 conferences)

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences)

Wheeler v. United States, 18-7187

Issues: (1) Whether a law enforcement officer’s warrantless insertion of keys into a locked apartment door, within a secured multi-unit dwelling, to gain information that was unavailable to the naked eye is an unreasonable search; (2) whether the rule of the U.S. Court of Appeals for the 3rd Circuit, which limits parties to the precise arguments raised in the district court, directly conflicts with the Supreme Court’s traditional rule that parties are not limited to the precise arguments made below but can make any argument in support of a claim that was properly presented.

(relisted after the May 9 and May 16 conferences)

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Petitions of the week

May 22, 2019 by admin Leave a Comment

This week we highlight petitions pending before the Supreme Court that address the validity of the Manual of Patent Examining Procedure Section 1207.04, under what circumstances a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, and whether 29 U.S.C. § 1344(c) precludes disgorgement of profits as an appropriate equitable remedy under 29 U.S.C. § 1303(f).

The petitions of the week are:

Levert v. United States

18-1276

Issue: Whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based on its original judgment on that provision or another provision of the same statute.

Lewis v. Pension Benefit Guaranty Corp.

18-1279

Issue: Whether 29 U.S.C. § 1344(c) precludes disgorgement of profits from the Pension Benefit Guaranty Corporation as an appropriate equitable remedy under 29 U.S.C. § 1303(f) for the Pension Benefit Guaranty Corporation’s breaches of fiduciary duties.

Hyatt v. Iancu

18-1285

Issue: Whether the Manual of Patent Examining Procedure Section 1207.04 violates patent applicants’ statutory right of appeal following a second rejection.

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