May 2012 Archives

We have less than a month until the end of the 2011 Term. Less than a month until we learn the decision in the biggest case of the decade. Less than a month until we have to speculate on what will be the next “biggest case of decade,” (since it really is an arbitrary designation).

We’re not expecting further opinions or orders this week from the Court, so we’re going to get a head start on our favorite summer activity: speculating about the next Supreme Court term.

Secured creditors had a big win in the Supreme Court this week. The Court ruled 8-0 Tuesday that debtors may not obtain confirmation of a Chapter 11 cramdown plan that provides for the sale of collateral free and clear of the bank's lien, but does not permit the bank to credit-bid at the sale.

In the opinion, Justice Antonin Scalia outlined the Bankruptcy Code's three alternative standards for determining if a Chapter 11 plan is "fair and equitable" to an objecting class of secured creditors. The alternatives are:

The Supreme Court ruled on Thursday in Blueford v. Arkansas that the State of Arkansas can re-try a defendant for murder, even after the jurors unanimously found him not guilty.

Arkansas avoided the dreaded scourge of double jeopardy in the case because the jury never actually acquitted the defendant in question.

If you know only one thing about the Real Estate Settlement Procedures Act (RESPA), it's that kickbacks and unearned fees are prohibited. Thursday, however, the Supreme Court clarified the terms of the unearned fee prohibition. Justice Scalia, writing for the unanimous court, affirmed the Fifth Circuit Court of Appeals to hold that a plaintiff must demonstrate that a loan charge was divided between two or more persons to sue for a RESPA violation.

The RESPA kickback and unearned fees prohibition states that "no person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service ... other than for services actually performed."

As June approaches, and the case year comes to a close, the Supreme Court opinions will start rolling in. It’s only 36 days until the last day of the term, and the Court has yet to release opinions in 22 of the 69 cases argued this year.

Monday, the Nine issued three Supreme Court opinions. We already covered the Court’s decision in Astrue v. Capato in this blog; now we’re moving on to the other two cases decided this week, Holder v. Gutierrez and Taniguchi v. Kan Pacific Saipan, Ltd.

The Supreme Court ruled on Monday that twins conceived after their father's death were not entitled to his Social Security benefits.

In the opinion -- reversing a prior Third Circuit Court of Appeals decision that granted benefits to the posthumously-conceived children -- the unanimous Supreme Court noted that the Social Security Administration's interpretation of the survivor benefit statute "is better attuned to the statute's text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime."

Justice Stephen Breyer can't catch a break.

Thursday, The Washington Post's Reliable Source column reported that Justice Breyer was robbed earlier this month. A housekeeper discovered the break-in May 4. No one was home at the time of the burglary, according to Supreme Court spokeswoman Kathleen Arberg.

If this feels like déjà vu, it's because Justice Breyer was also robbed in February at his home on the West Indies island of Nevis. The machete-wielding robber took approximately $1,000 in cash from Breyer, his wife, Joanna, and their guests. Thankfully, no one was injured.

When we first read the Ninth Circuit Court of Appeals case in which Seattle cops used a Taser on a woman who was seven months pregnant because she wouldn’t sign a speeding ticket, we were shocked that the Ninth Circuit ruled that the cops were entitled to qualified immunity. We expected the plaintiff to appeal Supreme Court petition in the case, but we thought the cops would be happy with the ruling.

Well, color us surprised.

The Taser-happy cops in Mattos v. Agarano are petitioning the Supreme Court, claiming that the Ninth Circuit incorrectly concluded that they used excessive force against the pregnant speeder, reports The New York Times. Taser use in the situation wasn’t excessive force, they argue, it was a “useful pain technique.”

The Supreme Court ruled Monday that bankrupt farmers owe capital gains taxes from a bankruptcy sale, reports The Associated Press.

In a 5-4 opinion written by Justice Sonia Sotomayor, the Court held that the federal income tax liability resulting from a post-petition farm sale is not “incurred by the estate” under §503(b) of the Bankruptcy Code, and is neither collectible nor dischargeable in the Chapter 12 plan.

As we mentioned last week, the Supreme Court's popularity is waning. A recent Pew Research Center poll showed that only 52 percent of Americans have a favorable view of the Court, its lowest approval rating in a quarter-century.

So what’s an aging institution to do when it loses its sex appeal? Why, get a face lift, of course. This week, workers started a nearly two-year Supreme Court renovation project on the building’s marble facade.

Years ago — before the John Edwards trial began — the former Senator from North Carolina came across as a likeable guy.

Despite his wealthy trial lawyer lifestyle, he seemed relatable. (His boyish good looks and Southern drawl probably helped). More importantly, Americans sympathized with John and Elizabeth Edwards as Elizabeth bravely battled cancer through two presidential campaign cycles.

Then we learned about Rielle Hunter.

As a legal community, we assume that a litigant's statements to the Supreme Court are true. The limited number of cases that reach the Court each year are subject to intense media scrutiny, so surely any falsities would be quickly revealed and horribly embarrassing.

Whether or not it was an outright lie, a rare piece of faulty information made its way to the Nine in the 2009 case, Nken v. Holder, and the Court based its opinion, in part, on that faulty information. Now, some immigrant groups are asking the Court to amend its opinion to correct the mistake.

The Supreme Court ruled last week in U.S. v. Home Concrete & Supply that three years was plenty of time for the Internal Revenue Service (IRS) to determine whether a taxpayer has overstated the basis in property that he has sold, and understated the gain received from the sale.

The case stemmed from an investigation in the Son of Boss tax shelters, which created paper losses to offset real gains. ("Boss" is an acronym for "bond and option sales strategies.")

Regardless of whether the country prefers "activist" judges or "strict constructionists," only half of Americans have a favorable opinion of the Supreme Court, according to a new Pew Research Center poll.

That number has steadily declined over the last three years. In April 2009, 64 percent of respondents had a favorable opinion of the Court; by July 2010, that number had dropped to 58 percent.

Citizens United is criticizing the Montana Supreme Court for its Western Tradition Partnership v. Attorney General ruling.

Last December, the popularly-elected Montana Supreme Court held in its 5-2 Western Tradition decision that the state had a compelling interest in continuing to enforce the state’s Corrupt Practices Act. Montana voters approved the Act, which limits/bans corporate campaign expenditures, in 1912.

At the time the decision came out, one of the dissenters remarked that the U.S. Supreme Court would strike down the opinion without a second thought because the ruling contradicts the U.S. Supreme Court’s Citizens United decision.