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April 2016 Archives

The Supreme Court refused to intervene in a conflict over Texas's voter identification law today. That law, which imposes some of the most rigorous voter ID requirements in the country, has been used in Texas's last three elections, even though the Fifth Circuit has found the law to have a discriminatory effect. And those voter ID requirements will continue to remain in place for Texas's upcoming runoff elections in May, now that the Supreme Court has refused to halt the law's enforcement.

But the Court might not stay away much longer. In its order, the Supreme Court gave the Fifth Circuit until July 20th to act on the dispute. If it doesn't, the order explained, then the Supreme Court would be likely to step in.

The Supreme Court heard its final oral argument of the term this morning, and it was a fittingly weighty one: the case of former Virginia Governor Bob McDonnell. McDonnell was convicted on corruption charges in 2014, stemming from his relationship with a Richmond businessman who gave him nearly $200,000 in gifts and loans.

McDonnell currently faces two years in prison for public corruption, but he may end up going free without serving a single day, if today's oral arguments are any indication. A majority of the Supreme Court justices seemed ready to significantly limit, or maybe even strike down, the federal bribery statute used to convict the governor.

When Jeffrey Heffernan, a police officer in Paterson, New Jersey, was spotted with a campaign sign for his mayor's political challenger, he was quickly demoted, as punishment for his "overt involvement" in the opponent's campaign. Heffernan sued, arguing that the demotion violated his First Amendment rights. And he would have had a fairly straight-forward case, except for one complication. Heffernan hadn't been involved in the opponent's campaign. Not at all. He'd just been picking up a sign for his bedridden mother.

Could he sue for a violation of a constitutional right he hadn't actually exercised? Yes, the Supreme Court ruled today, finding that employees who have been punished in order to prevent them from engaging in protected political activity can sue, even when the employer's actions were based on a mistaken understanding of the employee's behavior.

Throughout the past eight years, President Obama has worked slowly but surely to bring greater diversity to the federal courts, the president assured law students at the University of Chicago Law School earlier this month. But when it came time to picking his third Supreme Court nominee, he told the crowd, "at no point did I say: 'I need a black lesbian from Skokie in that slot.'"

Why not?

Wednesday was not a shining moment in the history of Supreme Court oral arguments. This was not Paul Clement going punch-for-punch with Justice Souter in Hamdan v. Rumsfeld. It wasn't even Margie Phelps, a crazed member of the Westboro Baptist Church, winning over the reluctant justices in Snyder v. Phelps.

On Wednesday, the Supreme Court heard oral arguments over whether states can penalize drivers who refuse to take warrantless breathalyzer tests. And attorneys for all sides performed "like a clodhopping amateur trying out for a moot court team," as Slate's Mark Joseph Stern so adroitly describes it.

Once upon a time, to read a book you had to travel to the local bookstore, or, for the penny wise, the library. If you needed information from a rare or out of print work, you might have to go halfway across the world to secure a copy. Today? You can just Google.

Google Books, the search behemoth's attempt to digitize all the world's printed matter, already has 25 million titles online, searchable and available for free. But four million of those titles are copyrighted, leading to a long-running class action lawsuit by the Authors Guild, which argued that Google was engaged in "massive copyright infringement." The authors lost that challenge in the Second Circuit and, on Monday, the Supreme Court wrote the final chapter to the dispute, denying cert and allowing that decision to stand.

Victims of Iranian-sponsored terrorism won big in the Supreme Court this morning. Today, in a 6-2 ruling authored by Justice Ginsburg, the Court upheld a law giving terror victims an explicit right to collect a court judgment against Iran. That 2012 law, passed as federal courts were considering the same question, did not overstep the separation of powers between Congress and the courts, the Supreme Court ruled.

The ruling opens up a $2 billion judgment against Iran, making the money available to the more than 1,000 victims and families of victims of Iranian-sponsored terrorist attacks, including a 1983 bombing of Marine barracks in Beirut and the 1996 bombing of the Khobar Towers in Saudi Arabia.

Last June, the Supreme Court struck down the Armed Career Criminal Act's so-called residual clause. Under the ACCA, which is the federal "three strikes" law, certain violent offenders are subject to mandatory minimum sentences if they've been thrice convicted of specific crimes, or any crime involving "a serious potential risk of physical injury to another." That residual clause, quoted above, was unconstitutionally vague, the Court ruled in Johnson v. United States.

But an open question remained: what happens to those who had already been sentenced under the ACCA's residual clause, pre-Johnson? Now, that question has been answered. On Monday, in a 7-1 opinion, the Supreme Court announced that Johnson has fully retroactive effect in cases on collateral review.

The Supreme Court heard oral arguments on President Obama's immigration reform plan today. Under Obama's immigration plan, Deferred Action for Parents of Americans, millions of immigrants could be spared deportation and given a path to lawful status. Twenty-six states, led by Texas, have sued to halt it, arguing that the plan is beyond the president's power.

At oral arguments, the eight-justice Court seemed evenly divided along ideological lines. That raises the prospect of a deadlocked, equally divided non-decision in one of the Court's most important cases of the year.

Thirteen deaf and hard of hearing lawyers will be sworn in at the Supreme Court next week. The attorneys are members of the Deaf and Hard of Hearing Bar Association, a professional association of "deaf, hard of hearing, and late-deafened attorneys, judges, law school graduates, law students, and legal professionals."

And while Supreme Court swearing-in ceremonies are regular events, occurring just about every day the Court is in session, this will mark the first time a member of the DHHBA has joined the Supreme Court Bar. The Court is even relaxing its cell phone ban for the occasion.

In March, the Supreme Court heard oral arguments over what the Affordable Care Act's contraception mandate can require of religious employers. The case, set to be decided by the end of the term, could affect how millions of workers get access to contraception -- and how religious employers get around providing it.

But the case may also force the Court to address more than just access to the pill and family planning. At its heart, Zubik v. Burwell is a conflict over who determines when religious beliefs have been burdened and how far the government must go to accommodate the aggrieved faithful.

There's a long tradition of Supreme Court justices returning to law schools to talk about the law, spread some SCOTUS wisdom, and even delve into politics occasionally. But in the last few weeks of this very unusual Supreme Court term, it seems as though the justices are stopping by law schools more than ever. And they've got company, as President Obama returned last Thursday to speak at the University of Chicago Law School, where he taught for 12 years.

So, what did the justices and President Obama have to say?

Merrick Garland isn't just President Obama's nominee to replace Justice Antonin Scalia on the Supreme Court; he's one of the Court's most successful feeder judges, sending 42 of his clerks on to Supreme Court clerkships. That's more than half of the 71 clerks Garland has had since joining the federal bench in 1997. And even those who don't go on to clerk for the Supreme Court often retain a close and supportive relationship with Garland, former clerks say.

Now, Garland's clerks are seeking to return the favor, hoping to help the federal judge advance to the Supreme Court. Last Monday, 68 of his former clerks sent a letter to the Senate leadership urging them to act on Garland's nomination.

This summer, Justice Ruth Bader Ginsburg will finally get her Broadway debut -- well, sort of. In July, Justice Ginsburg will take part in a performance of Shakespeare's "The Merchant of Venice." The play is being performed in Venice to commemorate the 500th anniversary of the city's Jewish ghetto.

And no, she's not playing Shylock. Justice Ginsburg will, fittingly, preside over a mock trial of the play's main characters.

Puerto Rico went before the Supreme Court two weeks ago, arguing that it should have the right to restructure its public debts. While the commonwealth is facing a massive debt crisis -- the island owes creditors more than $70 billion, about 70 percent of its GDP -- federal law prevents it from taking advantage of bankruptcy procedures. That exclusion from the bankruptcy code, the island argues, shouldn't prevent it from restructuring its debt under its own laws.

And while the Supreme Court waits to make a decision, the debt crisis continues spiraling onward. After debt holders sued to freeze some government assets on Monday, the island responded yesterday by passing a law stopping all debt repayment.

Do accusations of an unfair conviction, tainted by juror racism, justify breaching the confidentiality of jury deliberations? The Supreme Court will answer that question in its next term.

On Monday, the Court granted cert to Pena-Rodriguez v. Colorado, a challenge to state and federal rules that prohibit evidence about juror statements made during deliberations. The so-called “no impeachment” rules have been criticized for impeding defendants’ ability to show that their right to a fair trial has been violated, though their supporters argue that the rules protect jurors from later coercion and uphold the integrity of deliberations.

A convicted sex offender who fled the country without notifying authorities did not violate the Sex Offender Registration and Notification Act, a unanimous Supreme Court ruled yesterday. Lester Ray Nichols had been on the sex offender registry in Kansas for a year when he up and moved to the Philippines. And that was just fine, the Supreme Court found, as SORNA did not require offenders to notify authorities when they left U.S. jurisdiction.

But don't worry; the ruling does not create an international "get off the registry for free" card for sex offenders. Here's why.

It's the bedrock of modern American democracy: one person, one vote. But that seemingly simple principle can raise major ambiguities when it comes to legislative districting. Who, after all, counts as 'one person,' when drawing election districts? All residents, all citizens, all voters?

Today, the Supreme Court unanimously rejected a challenge that sought to make "one person" mean "one voter." States are free to use total population numbers, the Court ruled. But it didn't foreclose the possibility that, when it comes to "one person, one vote," there could be more than one way of counting.

In a surprising and unprecedented move today, a divided and increasingly deadlocked Supreme Court announced that it was canceling the rest of the October 2015 Term. The announcement revealed a Court frustrated by a series of evenly-divided decisions, unable to reach a viable majority on some of the nation's most important cases.

Speaking from the Supreme Court steps, Chief Justice Roberts said that, while the Court values its constitutional role, continuing on with just eight justices was "an exercise is Sisyphean futility and, frankly, we have better things to do."