November 2011 Archives

The Supreme Court will only hear six more cases in 2011. We can’t tell you if 2012 will be a happy new year or not, but we can let you know which cases the Supreme Court will hear when they return to the Bench for the January sitting.

There’s a heavy focus on administrative law in January, with litigants challenging decisions from the Environmental Protection Agency, the Federal Communications Commission, the Internal Revenue Service, Immigration Review Board, and the U.S. Patent and Trademark Office.

Thanks to a federal holiday, The Nine will only hear 10 cases to start the year. Without further ado, here’s the January oral argument schedule.

The Supreme Court granted cert this morning in Hill v. U.S., an appeal from the Seventh Circuit to address whether the Fair Sentencing Act of 2010 can be applied to sentencing for an offense that occurred before the statute's effective date.

The Fair Sentencing Act, which became effective August 3, 2010, raised the amount of crack cocaine necessary to trigger the 10-year mandatory minimum term from 50 to 280 grams, and the amount needed to trigger a 5-year mandatory minimum from 5 to 28 grams.

Around the holidays, we try to find a kind of connection between the revelry-of-the-moment and the law.

December is easy, thanks to the never-ending gift that is holiday displays and the Establishment Clause. Thanksgiving is a bit harder. Luckily, the Supreme Court denied cert to consider an interlocutory appeal in a turkey case, House of Raeford Farms v. U.S., last month; we’re going to run with it.

In a past life, we worked in mortgage compliance. It was a dark time that we try to block from our memories. We mention this because it seems that mortgage law - specifically, the Real Estate Settlement Procedures Act or RESPA - is suddenly a hot topic.

When we left the mortgage world behind, we had a freedom party - as one does - and burned the RESPA rules in our fireplace. Even though our copy of RESPA is now a pile of ash, we remember the most basic tenet of the law: no kickbacks. The no-kickback rule forms the basis of the complaint in the first case of the Supreme Court's December sitting, First American Financial Corp. v. Edwards.

While most of our attention this week has been dedicated to the individual mandate challenge, the Supreme Court granted cert on Monday in a Social Security benefits case that has also been generating buzz.

In Astrue v. Capato, the Supreme Court will decide whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that parent under applicable state intestacy law, is eligible for Social Security survivor benefits.

In the coming weeks, we'll keep hearing arguments about why two Supreme Court Justices - Elena Kagan and Clarence Thomas - should recuse themselves from the Affordable Care Act arguments. As neither indicated in Monday's orders that they would not participate in the decision, both are slated to be involved in these historic cases.

Why are Court-watchers in such a tizzy about these two Justices?

Conservatives describe Justice Kagan as long-time "cheerleader for Obamacare," and argue that, as Solicitor General during the Congressional healthcare debate, she should recuse herself. Liberals similarly want Justice Thomas to sit out the arguments because his wife, Ginny Thomas, is a conservative lobbyist who has opposed the Affordable Care Act.

Big Supreme Court news today: two new justices, Andromache Karakatsanis and Michael Moldaver, joined the highest court of Canada, our friendly neighbor to north.

What? You have neither the license nor the interest to argue before the Canadian Supreme Court? You wanted news of our own Supreme Court granting writs in the individual mandate appeals? You want to know when we’ll find out if the Affordable Care Act will be deemed unconstitutional?

Fine. We’ll give you what you want.

November is just beginning, but the Supreme Court’s oral argument sitting for the month is already complete.

Next week, we could have the Supreme Court’s cert decision in the individual mandate challenges that were up for consideration in this week’s orders. Once that cat’s out of the bag, no one will be able to think or speak of anything else. So while we still have your attention on other matters, let’s look at the cases that Court will consider during its December sitting.

This week, we’re attempting to satisfy your hunger for Supreme Court news with recaps of the highs and lows of the week.

First up, the first decision out of First Street for the 2011 term, Greene v. Fisher.

In a unanimous opinion written by Justice Scalia, the Supreme Court upheld petitioner Eric Greene’s conviction, deciding that “clearly established federal law,” for purposes of the Antiterrorism and Effective Death Penalty Act, is limited to the Supreme Court’s decisions “as of the time of the relevant state-court adjudication on the merits.”

The Supreme Court had a busy morning that included oral arguments, two per curiam opinions, and an orders list. Let's review the high points together.

This morning, the Court heard oral arguments in Zivotofsky v. Clinton and Kawashima v. Holder.

Zivotofsky examines whether the political question doctrine deprives a federal court of jurisdiction to enforce a statute that explicitly directs how the Secretary of State can record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport.

Previously this week, we discussed the upcoming Supreme Court arguments in Smith v. Cain. We're interested to see if a ruling in this case could actually change practices in the Orleans Parish District Attorney's office, when two prior Supreme Court opinions directed to the same office didn't. Most Court-watchers, however, are anxiously awaiting arguments in U.S. v. Jones, the warrantless GPS tracking case.

In Tuesday's oral arguments, Smith v. Cain is the bridesmaid, and U.S. v. Jones is the jurisprudential bride.

The Supreme Court has entertained a heavy criminal caseload so far this term, considering rights to effective counsel, returned-mail appeal waivers, and the wisdom of eyewitness testimony. Next week, the Court will take up prosecutorial misconduct in Smith v. Cain as it reviews questionable practices in the Orleans Parish District Attorney's office for the third time in 16 years.

Why has the Court showered the New Orleans prosecutors with so much attention over the years?

Because Orleans Parish prosecutors have a nasty habit of withholding exculpatory evidence.

The Supreme Court denied cert this week in combined cases Utah Highway Patrol Association v. American Atheists, Inc., and Davenport, et al., v. American Atheists, two religious display disputes involving cross memorials honoring fallen Utah state troopers.

The Tenth Circuit Court of Appeals narrowly decided last year that the cross displays were an unconstitutional violation of the First Amendment Establishment Clause. Justice Clarence Thomas, in a 19-page dissent to the denial of cert, claimed that sharply divided courts will continue to debate proper application of the Establishment Clause until the Supreme Court issues an opinion to clarify its stance on religious displays on government property.