Argument preview: The justices return to cellphones and the Fourth Amendment

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Argument preview: The justices return to cellphones and the Fourth Amendment

[Editor’s note: An earlier version of this post ran on July 31, as an introduction to the blog’s symposium on Carpenter v. United Statesas well as at Howe on the Court, where it was originally published.]

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained “only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the “third-party doctrine” – the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the court’s decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument next week.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenter’s, that had been given to them by one of Carpenter’s partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes – according to Carpenter, they are made in thousands of cases each year.

Investigators received several months’ worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Court’s decision in Smith(among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a “search” for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not “mechanically” apply their earlier decisions, but should instead use a more “nuanced” approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenter’s cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so “in any meaningful way,” because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider – his privacy interest in the information revealed by the records – weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places – most notably, at home – where he would expect privacy.

In a “friend of the court” brief, the Electronic Frontier Foundation and other privacy groups echo Carpenter’s arguments. In particular, the groups highlight how times have changed since the court’s third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days’ worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It “is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.”

For the federal government, this case is a straightforward one, regardless of any “new technologies” like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to “find weak spots in their network and to determine whether roaming charges” should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls – a “core distinction,” according to the government. What Carpenter’s argument really boils down to, the government argues, is that “law-enforcement officers could infer from” his service-providers’ records that he was near a particular cell tower at a particular time. But, the government counters, “an inference is not a search.”

The federal government also pushes back against Carpenter’s suggestion that “broader privacy concerns” weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter “assumed the risk that the information would be divulged to police.”

Carpenter’s argument that cellphone records are somehow “more private” than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenter’s case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspect’s car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the car’s movements continuously for 28 days, allowing them to pinpoint the car’s location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenter’s phone when he was making the calls.

Carpenter’s case is not the Supreme Court’s first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014, the justices ruled that police must obtain a warrant to search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of “detailed personal facts” available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

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Wednesday round-up

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Wednesday round-up

At Supreme Court Brief (subscription required), Tony Mauro reports that “Deputy U.S. Solicitor General Michael Dreeben will detour from special counsel Robert Mueller’s legal team next week to argue before the U.S. Supreme Court in high-profile privacy case,” Carpenter v. United States, which asks whether the government must obtain a warrant for cell-site-location information. At the Washington Post’s Volokh Conspiracy blog, Will Baude explains why “the positive law model” of the Fourth Amendment, under which “it is a search for the government to gather information in a way that a similarly situated private party would not be allowed to do,” provides “an alternative theory” for evaluating Carpenter “that may avoid a lot of line-drawing problems.”

Briefly:

  • The editorial board of The New York Times weighs in on two cert petitions the court will consider next week that ask whether sentences of life without parole for juvenile offenders are unconstitutional, arguing that “for the sake of the hundreds of juveniles in [Michigan and Louisiana], many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.”

  • At The Economist’s Democracy in America blog, Steven Mazie suggests that the recent addition of Judge Brett Kavanaugh, a former law clerk to Justice Anthony Kennedy, to President Donald Trump’s list of potential Supreme Court nominees may “be a pinky-promise golden parachute to … Kennedy,” but warns that if “Kennedy considers the fate of his judicial legacy on the Supreme Court, he may think twice,” because, “[l]ike Justice Gorsuch, Judge Kavanaugh is more conservative than his old boss.”
  • At Bloomberg BNA, Jordan Rubin looks at the cert petition in Hidalgo v. Arizona, a case challenging Arizona’s death-penalty scheme and the death penalty nationwide, noting that “only two justices have squarely called for a reexamination of the death penalty’s constitutionality,” but that experts suggest that “the justices could—and very well may—elect to just take up the Arizona-specific question and ignore the blockbuster issue of the death penalty itself.”
  • At Crime and Consequences, Kent Scheidegger offers his take on the U.S. government’s request to the Supreme Court for a stay of a Hawaii district court ruling blocking enforcement of key portions of the president’s September 24 ban.
  • At the Cato Institute’s Cato at Liberty blog, Jay Schweikert discusses Collins v. Virginia, in which the court will decide whether the automobile exception to the warrant requirement allows a police officer to conduct a warrantless search of a car parked on private property near a house; he argues that “permitting such a practice would be squarely inconsistent with the Fourth Amendment’s special solicitude for the privacy of the home.”
  • At National Review, Ed Whelan points out that the court’s recent summary reversal in Kernan v. Cuero “marks at least the fourth such reversal of a … ruling” by Judge Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit.
  • At The World and Everything In It (podcast), Mary Reichard recaps the oral arguments in Merit Management Group v. FTI Consulting, which asks when a bankruptcy trustee can unwind transactions made by or to a financial institution, and Patchak v. Zinke, in which the justices considered the separation-of-powers limits on Congress’ ability to direct the outcome of litigation.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petition of the day

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Petition of the day

The petition of the day is:

17-618

Issues: (1) Whether, under the Equal Access to Justice Act, prevailing party status on appeal is separate and distinct from prevailing party status in the entire litigation; (2) whether separate claims brought under the Administrative Procedure Act seeking the identical remedy are distinct in all respects for fee purposes; and (3) whether a district court may raise objections to a fee request sua sponte, without giving the party making the request an opportunity to respond.

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Argument preview: Plain talk about Dodd-Frank whistleblowing

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Argument preview: Plain talk about Dodd-Frank whistleblowing

Thar she blows

In 2010, Congress was all about reforesting the new wasteland of American finance created by the 2008 financial crisis; the result was the Dodd-Frank Wall Street Reform and Consumer Protection Act, which transformed the banking and financial-services industry. Early in the legislative process, it was agreed that paying bounties for information would be a nifty idea; the result was a proposal that if information reported to the Securities and Exchange Commission led to monetary penalties, the commission could reward the reporter with part of the take. The term “whistleblower” was employed throughout the new, several-page-long Section 21F of the Securities Exchange Act of 1934 and was specifically defined as “any individual who provides … information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.”

The whistleblower award structure created by Section 21F sensibly included protection against employer retaliation. Two proposed subsections prohibited retaliation against whistleblowers for providing information to the commission and for participating in any judicial or administrative actions based on or related to the information provided.

Inside, outside, upside down

Both the House of Representatives and the Senate had passed bills endorsing this coherent scheme before any lawmakers focused on the possibility of retaliation against an employee for internal reporting – that is, for reporting to a supervisor, company audit committee or the like. Legislative history reveals concern for promoting internal reporting, as well as dissatisfaction with the pre-existing provisions of the Sarbanes-Oxley Act of 2002 that prohibited retaliation against whistleblowers engaging in either internal or external reporting.

There is, however, no legislative history specifically discussing the origin of a third anti-retaliation subsection (we’ll call it “Clause (iii)”), which sprang from the head of Zeus and into Section 21F shortly before passage of Dodd-Frank. Clause (iii) does not refer to providing information to the SEC, but prohibits retaliation against “whistleblowers” for acts protected under several cross-referenced laws. These acts include, under Sarbanes-Oxley, internal reporting and/or reporting to or cooperating with arms of government other than the SEC – notably including members and committees of Congress.

The problem, of course, is that a “whistleblower” is defined in Dodd-Frank as someone who provides information to the commission about a securities-law violation. If you are an employee claiming retaliation either for internal reporting or for reporting to some arm of government other than the SEC and you did not also report to the SEC, you would seem to be out of luck.

Enter Paul Somers

Digital Realty Trust, Inc., hired Paul Somers in 2010 and fired him in 2014, allegedly in retaliation for reporting to senior management his supervisor’s elimination of internal controls in violation of Sarbanes-Oxley. Somers forewent the remedy made available under Sarbanes-Oxley itself, which requires filing a complaint with the Department of Labor within 180 days of the retaliatory event. Instead, seven months after his firing, he instituted a lawsuit in the U.S. District Court for the Northern District of California claiming the protection of Clause (iii). Digital Realty moved to dismiss on the grounds that, although Somers might be a whistleblower for Sarbanes-Oxley purposes, he had not satisfied Dodd-Frank’s threshold requirement of reporting information to the commission.

The district court declined to follow Asadi v. G.E. Energy (USA), L.L.C., a decision of the U.S. Court of Appeals for the 5th Circuit holding that the plain language of Section 21F limits “whistleblower” status to those reporting information to the commission. Instead, in line with the majority of the district courts that had considered the matter, it found the statute ambiguous, and turned to the SEC’s own interpretation of the definition of “whistleblower,” which favored Somers.

Flashback: Enter Rule 21F-2 and the elephant in the room

Section 21F authorizes the commission to adopt “such rules and regulations as may be necessary or appropriate to implement the provisions of this section consistent with the purposes of this section.” In 2011, after notice and comment, the SEC did so. Unlike the statute, Rule 21F-2 bifurcates the definition of “whistleblower” to distinguish those who seek bounties from those who seek protection from retaliation. The ability to claim a bounty is premised on providing information to the commission pursuant to its designated procedures. By contrast, according to Rule 21F-2, the ability to receive protection from retaliation is based on disclosing information in a manner described in any of Section 21F’s anti-retaliation provisions, including Clause (iii) and its cross-references.

Whether Rule 21F-2 is dispositive or, perhaps, even interesting is affected by one’s views of (a) whether Clause (iii) is ambiguous and (b) whether the Chevron-deference doctrine is entitled to, well, deference. Under that doctrine, pioneered in Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., if congressional intent is unclear, courts should defer to an agency’s permissible construction of the relevant statute. Those who are followers of developments in administrative law will know that there was an attempt earlier this year to legislate Chevron deference out of existence. They also will know that Justice Neil Gorsuch takes a less charitable view of Chevron – “the elephant in the room,” he once called it – than did his predecessor, Justice Antonin Scalia.

[Fun fact: Gorsuch’s mother, Anne Gorsuch Burford, then-head of the Environmental Protection Agency, was the original defendant in the litigation leading to Chevron.]

Fast forward: Enter Berman and the 9th Circuit’s ruling in this case

Before the appeal of the California district court’s order was heard by the U.S. Court of Appeals for the 9th Circuit, the U.S. Court of Appeals for the 2nd Circuit weighed in on the issue. The 2nd Circuit majority in Berman v. Neo@Ogilvy LLC, WPP Group USA, Inc., saw Clause (iii) as ambiguous, invoked Chevron, and chose to defer to Rule 21F-2. Rather than following either Asadi in finding that the plain language of the statute dictates a pro-employer outcome or Berman in invoking Chevron, the 9th Circuit forged its own path. This led the court to conclude that “whistleblower” should be read two different ways in Section 21F, even without resort to the commission’s rule (although Chevron deference was a back-up). According to the 9th Circuit, employing the Asadi approach “would “narrow[] [the third clause of the anti-retaliation provision] to the point of absurdity.” Not only would the group benefiting from that clause be exceedingly small, it generally would exclude attorneys and auditors required to report internally before turning to the commission.

The parties’ arguments

Digital Realty (obviously) claims that Section 21F is not ambiguous and that the plain language of the statute requires a ruling in its favor, asserting that the group protected under Clause (iii) is not absurdly limited given the congressional purpose to incentivize reporting to the SEC. It also makes the previously unvoiced claim that the adoption of Rule 21F-2 was procedurally flawed and therefore particularly unentitled to deference. Another highlight of its brief is a prediction that the Sarbanes-Oxley whistleblower protections will be emasculated if the Dodd-Frank protections are robustly construed. Noteworthy, too, is the argument that Congress knew how to adopt a more encompassing definition of “whistleblower,” showcasing the more comprehensive definitions of the term found in other statutes, including Sarbanes-Oxley, as well as in Dodd-Frank itself.

Somers’ brief details the shortcomings of Sarbanes-Oxley in heading off the financial crisis of 2008, urges the broad goals of Congress to incentivize whistleblowing of all types, and presses the confusion caused by Clause (iii)’s cross-referencing of another statute with a different, broader definition of “whistleblower.” It also mines Section 21F for evidence of inconsistencies demonstrating that the section is in tension with itself. Somers points out that although his construction clearly would enhance use of Clause (iii), there might still be internal reporters who would utilize the Sarbanes-Oxley remedy to avoid the expense of litigation. His closing salvo is directed at the impropriety of Digital Realty’s late-in-the-day attempt to raise possible irregularities in the adoption of Rule 21F-2.

The amici

A few of the amicus briefs are rather eye-catching.

In support of Digital Realty, the Cato Institute polishes the procedural-irregularity arguments to high gloss; Lime Energy Services and Prestige Cruises (both in the throes of related litigation) point out the availability of state remedies to those left unprotected by Section 21F.

In support of Somers, several amici amp up arguments about Supreme Court precedents that relax statutory definitions as required by context. The U.S. solicitor general details the legislative background and congressional purpose in enacting whistleblower protection and Sen. Charles Grassley, a Republican from Iowa, argues that Digital Realty’s interpretation of Clause (iii) is incongruously narrow compared to other statutory schemes and would severely discourage internal reporting.

Let’s twist again

In what may be the most thought-provoking amicus brief, the National Whistleblower Center steps forward to claim paternity of Clause (iii). It also gives the kaleidoscope a twist. Under the statutory definition, one becomes a whistleblower by conveying information to the SEC in the manner specified by the SEC. The center argues that Rule 21F-2 means that the commission has determined that it will accept information constructively when the information is transmitted as part of an internal report or reported to another arm of government.

The constructive-conveyance argument is inviting in the case of disclosures made to other government agencies or Congress itself, because they presumably can be trusted to act on the information and/or, as appropriate, pass it along to the commission. Perhaps regarding internal reporting as constructive conveyance is more of a stretch, but it could be one the justices find themselves limber enough to contemplate.

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Event announcement: Media briefing on Christie v. NCAA

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Event announcement: Media briefing on <em>Christie v. NCAA</em>

On December 1 at 12 p.m., Becker & Poliakoff and Spectrum Gaming Group will host a media briefing on Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting. Speakers include, but are not limited to, Theodore Olson, Elbert Lin, and Rep. Frank Pallone Jr., a Democrat of New Jersey. More information about this event at the National Press Club in Washington, including a full list of speakers and panels, is available in this media advisory.

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Argument preview: Justices to consider limits on securities class actions in state courts

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Argument preview: Justices to consider limits on securities class actions in state courts

Securities litigators have spent the last two decades working out the implications of two statutes Congress passed in the closing years of the last century, both designed to limit securities class actions. The first was the Private Securities Litigation Reform Act of 1995, known as the PSLRA. When that statute produced more of a flight to state courts than it did a decline in class actions, Congress responded with the Securities Litigation Uniform Standards Act of 1998, known as SLUSA. It is a testament both to the high stakes involved in securities litigation and to the sloppy drafting of both the PLSRA and SLUSA that the Supreme Court has faced numerous questions of interpretation under those statutes. Indeed, to the outsider the most remarkable thing about the argument next week in Cyan, Inc. v. Beaver County Employees Retirement Fund may be how many basic questions about the two statutes remain unsettled.

Because Cyan does not involve any regulations, the Supreme Court confronts a pure question of statutory interpretation. And because the relevant statutes are so intricate, some considerable discussion of the contested provisions is necessary to elucidate the problem at hand. The first point to understand is the tradition of concurrent jurisdiction over securities claims. From the enactment of the Securities Act of 1933 during the Great Depression, Congress traditionally expected (and explicitly provided in the statute) that securities litigation would proceed in both state and federal courts. Thus, the statute always has stated (in 15 USC § 77v) that the “district courts shall have jurisdiction, concurrent with State courts, of actions to enforce any liability created by [the Securities Act of 1933].” Responding to the PSLRA-driven flight of securities class actions from federal court to state court, SLUSA added a major qualification to Section 77v, which now provides that the state courts exercise concurrent jurisdiction “except as provided in section 77p … with respect to covered class actions.”

The question in this case is whether that proviso bars from state court both mixed class actions (those that present claims under both federal and state law) and pure federal class actions (those that assert claims only under the Securities Act), or only mixed class actions. That question, not surprisingly, depends on exactly what Congress “provided in section 77p … with respect to covered class actions.” It turns out that Section 77p does several things of arguable relevance. One is that Subsection 77p(b) completely bars any state-court class action raising claims under state law (which would include a mixed class action), so long as the action is a “covered class action” and involves a “covered security.” Section 77p also defines those terms, providing that a securities class action is “covered” if it involves 50 plaintiffs and that a security is “covered” if it is traded on a national exchange.

The most that the Supreme Court can do then (because it doesn’t sit to write report cards assessing the quality of Congress’ literary craft) is decide whether it makes more sense to read the proviso as barring all covered actions or instead as barring only mixed class actions. On the one hand, the employees argue that interpreting the proviso as barring all covered actions confers a lot of important substantive content on a phrase that reads as if it is only cross-referencing substantive action that Congress took elsewhere. On the other hand, in Cyan’s view, reading the proviso as barring concurrent jurisdiction only over mixed actions doesn’t accomplish very much when Section 77p(b) already has barred them categorically.

Much of the briefing, especially by the amici, raises policy questions about the merits of state court versus federal court resolution of securities class actions. Cyan’s amici inveigh against the danger of permitting the wild and ungovernable state courts to torment our nation’s large businesses, and the employees stress the longstanding routine of trusting state courts to play the major role in adjudicating commercial litigation in our federal system. In the past, the Supreme Court has shown a willingness to read SLUSA as a compromise statute designed to eradicate some, but clearly not all, state securities litigation. Oral argument should provide an indication of whether the parties’ and amici’s policy arguments will influence the justices’ resolution of the statutory interpretation questions in this case.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]

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Tuesday round-up

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Tuesday round-up

Yesterday the U.S. government asked the Supreme Court to allow all the provisions of President Donald Trump’s September 27 entry ban to go into effect while the government appeals a nationwide injunction issued by a district court judge in Hawaii that now blocks enforcement of key portions of the ban. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Josh Gerstein at Politico, Jess Bravin for The Wall Street Journal, Lyle Denniston at his eponymous blog, and Ariane de Vogue at CNN.

At Constitution Daily, Scott Bomboy looks at Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim. The Los Angeles Times editorial board weighs in on the case, arguing that “if the 1st Amendment means anything, government officials shouldn’t be able to punish dissenters, even rude ones, by selectively subjecting them to arrest — even if the arrest might be justified on other grounds.”

Briefly:

  • The Open File maintains that in Floyd v. Alabama, a pending cert petition,the state courts have again left it up to the U.S. Supreme Court—apparently the last and only line of defense against race discrimination in jury selection—to call a fig a fig.”  
  • At Empirical SCOTUS, Adam Feldman “looks at th[e] attorneys … who ha[ve] filed successful petitions for the current term [and] tracks these attorneys’ success at bringing cases to the Court on cert since the 2013 term.”
  • At Quomodocumque, mathematician Jordan Ellenberg takes issue with a claim made at oral argument on behalf of the state of Wisconsin in partisan-gerrymandering case Gill v. Whitford, asserting that“the idea that [the] efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

 

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Trump administration asks Supreme Court to intervene in travel-ban dispute (UPDATED Tuesday, 12:07 p

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Trump administration asks Supreme Court to intervene in travel-ban dispute (UPDATED Tuesday, 12:07 p.m. and 6:46 p.m.)

UPDATES: The justices have asked the challengers to file a response to the government’s filing. The response is due on Tuesday, November 28, by 12 p.m. On Tuesday evening, the justices also fielded another request from the government in the travel-ban litigation: As the government indicated that it would do in Monday’s filing, it has also asked the court to intervene in the parallel challenge, currently pending in the U.S. Court of Appeals for the 4th Circuit, to block a ruling by a Maryland judge that bars the government from enforcing part of the September 24 order. The justices quickly instructed the challengers in that case to file a response by next Tuesday as well.

The battle over the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries came to the Supreme Court on Monday. In a filing late in the day, the Trump administration asked the justices to allow the full set of restrictions – often known as the “travel ban” – to go into effect while the government appeals a ruling by a federal district judge in Hawaii blocking the ban.

It seemed all but inevitable that litigation over the travel ban would return to the Supreme Court after the justices dismissed the challenges to an earlier iteration of the ban. That earlier version, issued on March 6, halted the issuance of new visas to nationals from six predominantly Muslim countries (Syria, Libya, Yemen, Sudan, Somalia and Iran) and temporarily suspended the admission of refugees into the United States. The Supreme Court had been scheduled to hear oral arguments in the challenges on October 10, but the court removed the two cases from its calendar (and eventually dismissed them) in the wake of a new order from the president, issued on September 24.

The September 24 order restricted the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by the March 6 order), along with North Korea, Venezuela and Chad (which were not covered by the order). The challengers returned to court, where U.S. District Judge Derrick Watson put the new order on hold. The federal government appealed that ruling to the U.S. Court of Appeals for the 9th Circuit, which allowed the September 24 order to go into effect while the government appeals, with one exception: The government cannot enforce the order against nationals of the affected countries who can claim to have a genuine relationship with a person or institution in the United States.

On Monday the federal government went to the Supreme Court, asking it to allow the full order to go into effect while the challenge is being litigated. The government emphasized that the president’s September 24 proclamation is “the culmination of an extensive, worldwide review process conducted by multiple government agencies to determine what information is necessary from each foreign country in order to admit nationals of that country to the United States while ensuring that travelers do not pose a security or public safety threat.” Moreover, the government added, the September 24 proclamation “differs from the President’s prior executive orders in both substance and process” – including covering “different countries than the prior orders: it removes one majority-Muslim country; adds other countries, some of which are not majority-Muslim; and excludes various non-immigrant travelers from all but one of the majority-Muslim countries. These differences,” the government concludes, “confirm that the Proclamation is based on national-security and foreign-affairs objectives, not religious animus.”

This post was originally published at Howe on the Court.

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Petition of the day

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Petition of the day

The petition of the day is:

17-616

Issues: (1) Whether a court of appeals may rely on extra-record factual research to decide a petition for review of a removal order despite a statutory command that such a petition be decided “only on the administrative record,” 8 U.S.C. § 1252(b)(4)(A); and (2) whether federal court authority to decide constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D) permits review of legal error in exemption determinations under 8 U.S.C. § 1182(d)(3)(B)(i).

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