Recently in U.S. Supreme Court Category

Maybe the Vogt Case Wasn't Certworthy

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Rory Little has this post at SCOTUSblog on yesterday's argument in City of Hays v. Vogt.  The case involves the use at a preliminary proceeding, not a trial, of a statement a former police officer was required to make.  Is that a Fifth Amendment violation for which he can sue the city?

But there are complications that make the case a problematic "vehicle" to address that question.  One thing just coming out now is that Vogt may not have made any objection to the introduction of the evidence.  That is important.  Generally, any objection to evidence not made at the time of introduction is forfeited.
The U.S. Supreme Court today decided Murphy v. Smith, No. 16-1067:

This is a case about how much prevailing prisoners must pay their lawyers. When a prisoner wins a civil rights suit and the district court awards fees to the prisoner's attorney, a federal statute says that "a portion of the [prisoner's] judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." 42 U. S. C. §1997e(d)(2). Whatever else you might make of this, the first sentence pretty clearly tells us that the prisoner has to pay some part of the attorney's fee award before financial responsibility shifts to the defendant. But how much is enough? Does the first sentence allow the district court discretion to take any amount it wishes from the plaintiff 's judgment to pay the attorney, from 25% down to a penny? Or does the first sentence instead mean that the court must pay the attorney's entire fee award from the plaintiff 's judgment until it reaches the 25% cap and only then turn to the defendant?
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At the end of the day, what may have begun as a close race turns out to have a clear winner. Now with a view of the full field of textual, contextual, and precedential evidence, we think the interpretation the court of appeals adopted prevails. In cases governed by §1997e(d), we hold that district courts must apply as much of the judgment as necessary, up to 25%, to satisfy an award of attorney's fees.

This could be an important case on statutory interpretation, beyond the context of the Prison Litigation Reform Act.

If you hadn't guessed from the style of the above paragraphs, the opinion is by Justice Gorsuch.  Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Guilty Pleas and Appeals

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The U.S. Supreme Court today decided Class v. United States, No. 16-424:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal.
Justice Breyer wrote the opinion of the Court.  Justice Alito dissented, joined by Justices Kennedy and Thomas, criticizing the majority for leaving a "muddle."

SCOTUS March Calendar

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The U.S. Supreme Court has announced its March oral argument calendar.  Amy Howe describes the cases.  The criminal cases are all narrow federal issues.

Fast Track for the DACA Case

Cases normally take a leisurely path to the Supreme Court, going through a district court, a three-judge court of appeals panel, and a request for the full court of appeals to decide the case before the Supreme Court is even asked to look at it.  This long process generally brings a well-developed case to the high court after much debate and decision has already clarified and narrowed the question to be decided.

But not always.  In cases from federal courts, the Supreme Court has an authority it rarely exercises to take the case out of the court of appeals before decision.  In U.S. Dept. of Homeland Security v. Regents of the Univ. of California, No. 17-1003, the Solicitor General has asked the high court to do just that.  Even more, the SG has asked the court to accelerate the decision of whether to take the case, slicing a month off the usual schedule.

Today the high court granted the acceleration request in part.  The requested deadline for California to respond was yesterday, but the court gave them until Groundhog Day.

The case involves the DACA program, in which President Obama suspended enforcement of immigration law for a defined class of immigrants, even though he admitted he did not have authority to do so.
"A brick is not a wall," evidence guru Dean Charles McCormick famously wrote long ago.  The evidence that meets the required burden of proof for a particular proceeding, whether it be probable cause, proof beyond a reasonable doubt, or something in between, need not be a single item that carries the weight by itself.

In Fourth Amendment cases, the U.S. Supreme Court since 1983 (Illinois v. Gates) has rejected rigid criteria for probable cause.  All the facts must be considered, and the question is whether they add up to a "substantial chance of criminal activity."  This "is not a high bar."

Back in 2008, there was a raucous party in a vacant house in D.C.  Did the police have probable cause to believe this was an unlawful entry?  Today's opinion in District of Columbia v. Wesby describes the lots of little things that add up to the modest level of evidence needed for probable cause. 

The partygoers were released soon after arrest and no charges were filed against them.  Instead of being glad of their good fortune, they decided to sue the cops.  The District Court allowed this case to go to trial, and a jury awarded $680,000 for their comparatively minor inconvenience.  With attorneys' fees, it came to over a million dollars.  The D.C. Circuit affirmed, and the Supreme Court today reversed without dissent.  See page 11 for the Court's disapproval of looking at each brick rather than the wall.
Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

And yes, I would have thought the idea of DOJ overruling SCOTUS was bonkers before I read the Volokh Conspiracy post by Prof. Will Baude of Chicago.  Prof. Baude, by the way, is widely and correctly recognized to be a brilliant mind and one of the future stars of legal academia.  He is also, I should add, not a captive of the Leftist Bubble currently ruling the roost there, a fair-minded and eclectic thinker, and a casual friend of mine.

His Volokh Conspiracy entry dealing with marijuana enforcement policy does not directly say that DOJ can overrule Miranda, to be sure, but his analysis leaves no doubt about it.

Government Wins DACA Battle

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Twelve days ago, I noted that "the Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program."  Today the Government won a battle, but the war goes on.

In the case of In re United States, et al., No. 17-801, the Government asked the Supreme Court for relief from an order to add to the administrative record a broad array of vaguely described documents.  Today, the high court held:

Under the specific facts of this case, the District Court should have granted respondents' motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is "committed to agency discretion," 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

In other words, there is no need to compile a mountain of paper if the case can be resolved without it.  The Supreme Court also wants the Court of Appeals to supervise the District Court more carefully.
Jonathan Adler ponders that question from the Volokh Conspiracy's new perch at

There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.

I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list.

No New Supreme Court Cases

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The U.S. Supreme Court held its weekly conference Friday, announced a short list of cases taken up the same day, and issued the long, regular orders list today.  As is the usual pattern when a same-day list of grants is released, the Monday list is all denials.

There was no action on the Arizona capital case of Hidalgo v. Arizona, No. 17-251.  Amy Howe has this take on the case:

The justices did not act on the case of Abel Hidalgo, the Arizona death-row inmate (represented by Neal Katyal, the former acting U.S. solicitor general) who has asked the Supreme Court to weigh in on the constitutionality of the death penalty. After considering Hidalgo's cert petition at their December 1 conference, the justices asked the Arizona courts to send them the record in the case - which can be a sign either that at least one justice is looking at the case more closely or (especially in death-penalty cases) that someone is writing an opinion in the case. The most likely scenario seems to be that Justice Stephen Breyer, who in the past few years has repeatedly suggested that the Supreme Court should tackle the question now presented by Hidalgo's case, is writing an opinion regarding the denial of review, but Hidalgo and we will almost certainly have to wait until the new year for an answer.
From the Arizona Supreme Court's opinion in the case:

In late December 2000, Hidalgo agreed to kill Michael Cordova in exchange for $1,000 from a gang member. He accepted the offer without knowing Cordova or why the gang wanted him murdered. One morning in January 2001, Hidalgo waited in his car near Cordova's auto-body shop. When Cordova began unlocking the shop, Hidalgo approached and feigned interest in some repair work. They were joined by Jose Rojas, who occasionally did upholstery work for Cordova and came that morning to retrieve some equipment. After the three men entered the shop, Hidalgo shot Rojas in the back of the head. Hidalgo then shot Cordova in the forehead. Even though the shots were fatal, Hidalgo shot each victim five more times to ensure he died.

Government Wins DACA Skirmish

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The Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program.  In the case of In re United States, et al., No. 17A570, the high court ordered:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's September 22, 2017, October 17, 2017,and November 20, 2017 orders, to the extent they require discovery and addition to the administrative record filed by the Government, are stayed pending disposition of the Government's petition for a writ of mandamus or in the alternative a writ of certiorari.

Responses to the Government's petition for a writ of mandamus or in the alternative a writ of certiorari must be filed by Wednesday, December 13, 2017 at 4:00 p.m.
Justice Breyer dissents in an opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The main case is 17-801.

SCOTUS Takes Up New Criminal Cases

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Today the U.S. Supreme Court issued a short orders list taking up for full merits briefing and argument     criminal cases:

17-155 Hughes v. United States:  Sentence reduction due to retroactive amendment to the Sentencing Guidelines

17-312 United States v. Sanchez-Gomez:  "Whether the court of appeals erred in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot."

17-5716 Koons v. United States:  Another case on sentence reduction and retroactive amendments.

No blockbusters.

Look for a long list of denials Monday.

Cutting the First Amendment Cake

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CJLF takes no position on the Masterpiece Cakeshop case that was argued Wednesday in the Supreme Court.  I generally avoid taking positions outside of our core mission, and I especially avoid the hot-button social issues.  Even so, it is an interesting case, and I have been following it.

Stephen Wermiel of American University has this interesting post at SCOTUSblog on the amicus briefs in the case.  As a frequent "friend of the court" there myself, I have a particular interest in the subject.

The Supreme Court is not alone in being divided, however. The closely watched case has also split the community of First Amendment lawyers who advocate free-speech rights in a broad range of lawsuits, friend-of-the-court briefs, scholarly articles and panel discussions.

"Travel Ban 3.0" Injunction Stayed

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From the U.S. Supreme Court in Trump v. Hawaii, No. 17A550:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.

Justice Ginsburg and Justice Sotomayor would deny the application.
Essentially the same order was entered in the Fourth Circuit case, 17A560.

Note that, unlike "Travel Ban 2.0," the stay is not selective.  The preliminary injunctions are stayed in their entirety.

The Carpenter Argument

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The U.S. Supreme Court heard oral argument today in Carpenter v. United States, No. 16-402, the much-watched case regarding whether a warrant is required to obtain records from a cell phone company showing which cell towers the defendant's phone connected with at the time that robberies were being committed.  The transcript is now available on the Court's website.

I don't think it bodes well for Carpenter that Justice Kennedy peppered his lawyer with questions throughout his argument and said not a word during the government's argument.  That said, though, Justice Kennedy is among the most difficult to "read" from oral argument, so it is not certain he will vote for the government.

Justice Gorsuch clung to a property rights theory like a dog to a bone, while DSG Dreeben came close to saying, "Seriously? How can anybody think the customer has a property right in these records?"  Of course he didn't really say that, but I will bet a beer he was thinking it.

In a FedSoc teleforum afterward, Prof. Orin Kerr thought the argument went well for Carpenter and that he might get a majority of votes but not on a single theory.  I hope not.  We really don't need another fractured opinion that leaves everyone scratching their heads.  (Kerr wrote an amicus brief supporting the government, a rarity in academia, to put it mildly.)

A major theme in the argument was that privacy needs to be protected but that actually drawing the line would be difficult and possibly arbitrary.  It really would be better for the rules to be made legislatively in this area.

Stay tuned.

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