Now available on Oyez: This week’s oral argument audio aligned with the transcripts

SCOTUS Map: April 2018

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SCOTUS Map: April 2018

Could Justices Sonia Sotomayor and Clarence Thomas be the new Scalia/Ginsburg? At an April 3 lecture at Vanderbilt Law, Sotomayor mused that Thomas was the justice “with whom I probably disagree the most.” However, The Tennessean quoted Sotomayor as saying, “I can stand here and say that I just love the man as a person.” Additional coverage comes from Vanderbilt University News.

The next day, Sotomayor gave remarks at NYU Law’s new Guarini Institute for Global Legal Studies, sharing the stage with a former justice of the Constitutional Court of South Africa. NYU has coverage of the event and video online.

Meanwhile, Justice Stephen Breyer sat for an hour-long conversation and Q&A session at Tufts University, where he artfully dodged questions on hot-button issues such as banning assault rifles and partisan gerrymandering. Breyer reminded the students that working in federal government is not the only way to effect change: “If you want to help your families and friends and make a difference in your communities, don’t you all run to Washington … look to the states.” Of the Supreme Court’s role, Breyer said, “I think we work best when we come in last, because our job is not to say what is good or bad for the country. … Our job is to decide whether what the country comes up with is consistent with [the Constitution].” Coverage comes from TuftsNow. Video of the event is posted on YouTube.

On April 5, Thomas spoke at the 71st Horatio Alger National Scholars Conference in Washington, D.C., and hosted the organization’s awards program at the Supreme Court building.

Justice Ruth Bader Ginsburg visited Georgetown Law on April 6 to inaugurate a new annual lecture series named for her. Video of the lecture, which began with footage of her husband Martin Ginsburg introducing the justice at a 2003 event and ended with a musical performance from the Georgetown Gilbert and Sullivan Society, is available via C-SPAN.

The following week, Ginsburg presided over a naturalization ceremony held at the New-York Historical Society. According to the New York Times, Ginsburg recounted the story of her own father’s immigration to this country, telling the new American citizens that “[w]e are a nation made strong by people like you.” After the ceremony, the justice spoke to fellows from the Immigrant Justice Corps.

Justice Samuel Alito was part of the judging panel for Fordham Law’s Irving R. Kaufman Memorial Securities Law Moot Court Competition on April 8. A brief recap comes from the Virginia Law Weekly.

Justice Anthony Kennedy returned home to give remarks at an April 10 luncheon celebrating the centennial of the Sacramento County Bar Association.

Harvard University played host to Breyer on April 11, though this time at the medical school and not the law school. In his Roger Allan Moore Lecture on Values and Medicine, Breyer exhorted the audience to participate in public life and engage with people with whom they disagree. Harvard Medical School News covered the event.

Sotomayor was honored with the Lifetime Achievement Award at the Ninth Annual DVF Awards (named for the fashion designer Diane von Furstenberg) on April 13. The justice (who represented Italian fashion houses against counterfeiters as a litigator in the 1980s and 1990s) spoke about the women in her family who raised her and inspired her. According to Vogue, Sotomayor said, “The stories of your grandmothers, of your mothers, and of the other women in your lives who have uplifted you – don’t forget their stories because they’re the stories that will keep us moving.” Additional coverage comes from the Hollywood Reporter and Women’s Wear Daily.

To close out this month, Justice Elena Kagan will speak on April 30 at the 67th Annual Meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit in Chicago.

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Friday round-up

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Friday round-up

At AL.com, Kent Faulk reports that “Alabama on Thursday night executed 83-year-old Walter Leroy Moody for the 1989 pipe bombing death of a federal judge,” and that Moody “became the oldest inmate executed in the United States since the return of executions in the 1970s.” For The Washington Post, Mark Berman reports that “Moody unsuccessfully appealed to the U.S. Supreme Court on Thursday to stop the execution.”

Courtney Lollar analyzes Wednesday’s argument in Lagos v. United States, which asks whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under the Mandatory Victim Restitution Act, for this blog. At Law360 (subscription required), Jimmy Hoover reports that “[t]he federal government faced headwinds … while defending a roughly $16 million restitution order against a former trucking company CEO who defrauded General Electric Capital Corp., as various justices voiced skepticism that the CEO should have to pay GE’s pricey legal fees under a federal victim’s restitution law.”

This blog’s analysis of Wednesday’s other argument, in Washington v. United States, in which the justices considered the scope of tribal fishing rights, comes from Miriam Seifter. According to Andrew Westney at Law360 (subscription required), “several justices seemed to have difficulty deciding the standard to apply to the tribes’ ‘right of taking fish’ under their 19th century treaties with the federal government as well as defining exactly how the appropriate standard should be applied.”

Briefly:

  • At The Economist’s Democracy in America blog, Steven Mazie breaks down Tuesday’s oral argument in South Dakota v. Wayfair, in which the justices will reconsider a ruling that limits the ability of state governments to require out-of-state online retailers to collect sales tax on sales to state residents, reporting that “conflicting claims [made in the case] seemed to befuddle Justice Stephen Breyer, who may hold the key vote.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
  • Counting to 5 (podcast) look[s] at two new opinions in argued cases, and … preview[s] the six cases the Court will be hearing in the second week of the April oral argument session.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “break down [Justice Neil] Gorsuch’s ‘liberal’ vote in an immigration case and oral argument in the internet sales tax case” and talk to “Texas Solicitor General Scott Keller … about Anthony Kennedy, Ted Cruz, and the sweet mystery of life.”
  • The Open File’s Prosecutorial Accountability blog maintains that the cert petition in Williams v. Louisiana “exemplifies the problem with the prosecutorial bar in Louisiana, and presents the U.S. Supreme Court with an opportunity to enforce Brady in a case with a particularly vulnerable defendant who—in addition to being an intellectually-disabled juvenile at the time of the crime—appears to be innocent.”
  • At his eponymous blog, Ed Mannino explains how “the famous commencement speech of Alexander Solzhenitsyn at Harvard University in 1978 … regarding the decline of the West has application to the situation presented” in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding.
  • At the Sentencing Law and Policy Blog, Douglas Berman observes that “the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court’s further guidance on the contours of reasonableness review,” and suggests that a pending cert petition in Ford-Bey v. United Statesoffers the court an opportunity to provide such guidance.
  • At PrawfsBlawg, Roderick Hills discusses a case on the court’s docket for next term, Gundy v. United States, which asks “whether SORNA (the federal Sex Offender Registry Law) violates the so-called “non-delegation doctrine” (NDD) by delegating to the Attorney General the decision about whether SORNA should apply retroactively,” concluding that “if the Court wanted to resurrect a mini-NDD to prohibit Congress from making completely standardless delegations of retroactivity issues to executive officials, then Gundy might be a good vehicle with which to do so.”
  • At Take Care, David Gans weighs in on Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban, arguing that “[t]he Supreme Court should hold the ban unconstitutional for a simple reason: it is a throwback to religious restrictions on immigration that were part of colonial religious establishments in 17thand 18th century America.”
  • At Vogue, John Powers calls “the new celebratory documentary RBG” “an engrossing, sometimes quite moving story” about the career and influence of “improbable icon” Justice Ruth Bader Ginsburg.

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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Petitions to watch | Conference of April 20

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Petitions to watch | Conference of April 20

In its conference of April 20, 2018, the court will consider petitions involving issues such as whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause; and whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and, if so, whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

17-8151

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

17-7245

Issue: Whether the death penalty, in and of itself, violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

17-961

Issue: Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

17-6262

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

17-6769

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

17-988

Issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”

17-7517

Issue: Whether the statement of general principle that a burglary of a vehicle is not generic burglary within the meaning of the Armed Career Criminal Act because vehicles are not buildings allows generic burglary status when the vehicle is a dwelling place.

17-6883

Issue: Whether—when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim—it denied the petitioner due process.

17-5410

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

17-766

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

17-765

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

 

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Petitions of the day

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Petitions of the day

The petition of the days are:

17-1284

Issue: Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.

17-1289

Issue: Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.

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Argument preview: Travel-ban challenge returns

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Argument preview: Travel-ban challenge returns

On Wednesday, April 25, the justices will take the bench for the final oral argument scheduled for this term. Fittingly, the case on their docket that day is one of the biggest of the year: Trump v. Hawaii, the challenge to the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries. The government contends that a ruling for the challengers would “hamstring” the president’s ability to conduct foreign relations and protect the national security; the challengers counter that allowing the so-called “travel ban” to stand will not only preclude over 150 million people, overwhelmingly Muslim, from coming to the United States, but it will also consolidate “breathtakingly vast” power in the executive branch.

The focus of the case is the order that Trump issued in September 2017, which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. That order followed two orders that are not directly before the Supreme Court next week, but that are also likely to play important roles in the oral argument.

The first order, issued on January 27, 2017, imposed a 90-day ban on the entry of citizens from seven countries, all of which have large Muslim majorities: Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen. It also put a 120-day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries. A federal court in Washington state blocked the Trump administration from enforcing the order, and the U.S. Court of Appeals for the 9th Circuit rejected the government’s request to step in.

On March 6, 2017, the government issued a new order that was similar, although not identical, to the January 27 order: It imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the January order (Iraq was removed from the list) and suspended the entry of refugees, this time without any exceptions for religious minorities. After lower courts barred the federal government from enforcing that order as well, the Trump administration went to the Supreme Court, which agreed in June 2017 to weigh in. The justices scheduled oral argument for early October, and they allowed the government to implement the ban –at least for would-be travelers who didn’t already have some connection to the United States – until the court could rule on the dispute. But the justices dismissed that case from their argument calendar in late September, after Trump issued the current version of the order.

The challengers in this case – Hawaii, the Muslim Association of Hawaii and its imam, Dr. Ismail Elshikh, and two unnamed plaintiffs – returned to the lower courts to challenge the September 2017 order, arguing that – just like its predecessors – it violated both federal law and the U.S. Constitution. The Supreme Court allowed the government to implement the September 2017 order while it appealed lower-court rulings in favor of the challengers, and in January of this year the court announced that it would take on the case.

There are two main issues before the court. The first is whether the September 2017 order exceeds the president’s power over immigration. The federal government insists that it does not. Under the Constitution and federal immigration laws, it argues, the president has “broad authority” to suspend or restrict the entry of travelers from other countries into the United States when he believes it is in the country’s best interest to do so. That is exactly what Trump did here, the government explains, after several government agencies conducted a “worldwide review” to determine whether other countries were providing the U.S. government with enough information to determine whether their citizens should be allowed to come to the United States. Because the eight countries included in the September 2017 order either “do not share adequate information with the United States” or “present other risk factors,” the government continues, the president concluded that allowing citizens from those countries to enter the United States “would be detrimental to the interests of the United States.”

The challengers concede that Congress gave the president power to block noncitizens from entering the United States when he believes that allowing them to come here would harm the country’s interests. However, they caution, Congress did not authorize him to undermine the entire statutory scheme – which is precisely what the September 2017 order does. For example, although the immigration laws give the president the authority to temporarily block a “class of aliens” from entering the United States when it would harm the country’s interests, they argue, the September 2017 order “grossly exceeds those limits” because it bans a “sprawling group of 150 million aliens who share nothing in common but nationality and whom the Government can (and in many instances still does) safely admit” – and it does so indefinitely. Prohibiting the citizens of entire countries from coming to the United States because their governments have not cooperated with the United States is also, the challengers point out, inconsistent with Congress’ creation of the visa waiver program, which allows the citizens of some countries to travel to the United States for up to 90 days without having to obtain a visa; “Congress weighed precisely the same consideration in enacting” that program, the challengers argue, and “judged that it does not warrant excluding a country’s nationals from the United States.”

The federal government also pushes back against the challengers’ contention (with which the 9th Circuit agreed) that the September 2017 order violates the ban on discrimination based on nationality for visas to immigrate to the United States. Federal immigration law, the federal government stresses, does not require the government to issue visas to noncitizens who are ineligible to receive them based on some other part of the immigration laws. Such an interpretation, the government adds, would have meant that actions taken by Presidents Jimmy Carter and Ronald Reagan during diplomatic crises – Carter denied visas to citizens of Iran, while Reagan barred Cuban citizens from immigrating to the United States – would also have been illegal.

The second issue before the court is whether the September 2017 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. Arguing that it does, the challengers point to statements by then-candidate Trump, as well as comments by the president after he took office, calling for a ban on the entry of Muslims into the United States. Those comments were followed up, the challengers suggest, by the first two orders, which targeted countries with “overwhelmingly Muslim populations”; the president even acknowledged that the first order’s exception for religious minorities was intended to help Christians. The September 2017 order now before the court is, the challengers assert, simply a “direct descendant” of the January 2017 and March 2017 orders; the only real difference is that the most recent version also imposes “token restrictions” on two countries – Venezuela and North Korea – whose populations do not include large numbers of Muslims. When all of this evidence is taken together, the challengers maintain, the only possible conclusion that can be drawn is that the September 2017 order was issued “for the unconstitutional purpose of excluding Muslims from the United States.”

The federal government urges the court to keep its focus on the September 2017 order, arguing that it does not violate the establishment clause. All that the Supreme Court caselaw requires is that the government have a “facially legitimate and bona fide reason” for the order, the government contends. And here it does: The president based the order directly on his “national-security and foreign-policy judgments,” which hinge on findings by U.S. government agencies that the countries listed in the order either do not provide sufficient information to the U.S. government or present other risks. The lower courts should not have considered the earlier orders or the president’s remarks about banning Muslims from the United States, and the Supreme Court should decline to engage in “judicial psychoanalysis of a drafter’s heart of hearts,” the government concludes.

In addition to the two primary issues in the case, the justices also agreed to tackle two other questions. The first is whether the case is justiciable – that is, whether federal courts can consider the issues at all. The federal government urges the court to hold that it is not, which would obviate the need for the court to move on to the merits of the challengers’ claims. The claims alleging that the January 2017 order exceeds the president’s powers under federal immigration law are not, the government contends, a proper topic for courts to review because, as a general rule, courts should not consider decisions by the president and Congress to block noncitizens from entering the country. And although the Supreme Court has in some cases reviewed constitutional claims when a U.S. citizen argued that keeping a noncitizen out of the country would violate the U.S. citizen’s rights, that is not the scenario before the court now. Here, the government asserts, Hawaii and the other challengers claim only that they were injured by the denial of entry to other people; their own constitutional rights were not violated.

The challengers respond that federal courts can and should review their claims. First, they contend, the Supreme Court’s cases and federal immigration law only prohibit courts from “second-guessing Congress’s policy choices or individualized exercises of” discretion by the president and the executive branch. They do not bar courts from stepping in to enforce the very limits that Congress has imposed on the president when it comes to immigration. Second, they continue, courts can review their challenge to the constitutionality of the September 2017 order because it does violate their own constitutional rights: It generally “deprives every citizen of her right to a government free from the establishment of a disfavored faith” and it specifically “denigrates” their religion.

The fourth and final issue in the case goes to the relief that the district court ordered, which barred the Trump administration from implementing and enforcing the ban anywhere in the world. The government argues that such an order sweeps far too broadly. Even if the challengers are correct, the government contends, the lower court’s order should have focused only on remedies for the challengers who are actually before the court. For example, the government suggests, if the injury to the challengers stems from specific individuals not being allowed to enter the United States because of the September 2017 order, those people should be permitted to come to the United States, but the government should be allowed to enforce the order as to everyone else.

Hawaii counters that the president’s September 2017 order must be blocked nationwide. Any other solution, it argues, would result in “the splintering of immigration enforcement” and raise the possibility that the challengers would not receive “complete relief.”

Reflecting the deep public interest in the case and the travel ban more generally, the justices received a wide range of “friend of the court” briefs – submitted by everyone from Mormon history and legal scholars to Khizr Khan, the Gold Star father who criticized Trump at the 2016 Democratic National Convention, and a group of U.S. art museums. The court also announced last week that it would make the audio of the oral argument available shortly after the argument on Wednesday, rather than waiting until Friday, when the audio is normally released. But although we may have a good sense of where the justices are heading after next week’s oral argument, we almost certainly will have to wait until late June for the court’s ruling.

This post was originally published at Howe on the Court.

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Relist Watch

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Relist Watch

John Elwood reviews Monday’s relists.

April is a tricky time. By this late in the year, my skin is usually burned – although since I graduated from law school, that most often results from me setting the monitor contrast wrong. But there’s a new reason for my pallor this year. Under the new calendar – I’m talking here about the one that eliminated spring – it’s January 110th. On the plus side, I haven’t seen any mosquitoes yet.

There is enough action on the relist front this week that I’ll keep preliminaries to a minimum. This week saw the departure of what I believe to be the second-most relisted case of all time, Sykes v. United States, 16-9604, which leaves after 17(!) relists. It and the thrice-relisted Brown v. United States, 17-6344, both challenged Armed Career Criminal Act enhancements that rested on Missouri second-degree burglary convictions. The Supreme Court sent both back to the U.S. Court of Appeals for the 8th Circuit for further consideration in light of that court’s recent en banc decision holding that Missouri’s second-degree burglary statue is not a “violent felony” for ACCA purposes.

New week, new ACCA cases. The likeliest grant this week seems to be the government’s cert petition in United States v. Stitt, 17-765, which presents the question whether a conviction for burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The petition seeks review of the en banc decision of the U.S. Court of Appeals for the 6th Circuit holding (over the dissent of six judges) that the robbery of nonpermanent or mobile structures does not qualify. The court has relisted that case and fellow-travelers United States v. Sims, 17-766, out of the U.S. Court of Appeals for the 8th Circuit, and Smith v. United States, 17-7517, out of the 7th. We’ll see if the court agrees with the government that Stitt is the best vehicle to address an issue that obviously arises a lot.

That brings us to what is undoubtedly this week’s most interesting group of cases. Courts have long held that notwithstanding the double jeopardy clause, the federal government can prosecute criminal conduct that has already been the subject of a state-court trial because different sovereigns are acting in each instance. This idea is commonly known as the “dual sovereignty” doctrine. This week, the court has relisted four cases (and rescheduled a fifth) that seek to revisit that doctrine. I had long been puzzled because three cases presenting this issue had sat without action on the court’s docket since early January – Gamble v. United States, 17-646, Tyler v. United States, 17-5410, and Ochoa v. United States, 17-5503. With this week’s relists, we finally know why: The court was waiting for the government to file its brief in opposition in a fourth case raising the issue, Gordillo-Escandon v. United States, 17-7177. The fifth (rescheduled) case, has by far the best name: Bearcomesout v. United States, 17-6856. As you might have guessed given the caption, it involves whether dual sovereignty bars a federal prosecution after the defendant has been tried in Indian tribal court. It would be a big deal if the court grants review, but I have a sneaking suspicion that this is more dissentfromdenial-of-cert material.

The last criminal case is Bucklew v. Precythe, 17-8151, a habeas corpus petition involving a death-row inmate’s challenge to Missouri’s method of execution. You may want to skip to the next paragraph now. Bucklew argues that his rare medical condition – cavernous hemangioma, which causes inoperable, blood-filled tumors to grow in his throat and around his face, head, and neck, and which are susceptible to rupturing – will render Missouri’s lethal injection procedure extremely painful, and will likely cause him to feel as though he is choking on his tumors and to aspirate his own blood.

Finally, the court does do some civil cases from time to time.  Frank v. Gaos, 17-961, features the rare case when a well-known appellate lawyer appears as the named petitioner, rather than as counsel. Ted Frank asks the Supreme Court to put an end to the use of a trust-law doctrine known by the legal French term “cy pres” in class-action settlements. Frank argues that the doctrine is being abused to funnel settlement money to charities favored by class counsel. The case involves a judgment of the U.S. Court of Appeals for the 9th Circuit upholding a class-action settlement against Google that gave no money to the class members but awarded $5.3 million to third parties, including class counsel’s alma maters.

The Supreme Court on Tuesday affirmed a decision by Judge Stephen Reinhardt, the “liberal lion of the [U.S. Court of Appeals for] the 9th Circuit” who died in late March at the age of 87. Although some speculated that Sessions v. Dimaya would be the last Reinhardt case to be reviewed by the Supreme Court, Lamps Plus, Inc. v. Varela, 17-988, might yet hold that distinction. Indeed, the petitioner’s counsel identified Reinhardt by name on the “question presented” page. The case asks whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements. Although the arbitration clause did not mention class arbitration, the court of appeals, by a 2-1 vote in a memorandum opinion, inferred mutual assent to class arbitration from the more general language of the arbitration agreement, such as the statement that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to … employment.” Judge Ferdinand Fernandez, in dissent, characterized the opinion as a “palpable evasion of Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684-85 (2010),” which, the petition notes, stated that courts may not presume consent to class arbitration from “mere silence on the issue of class arbitration” or “from the fact of the parties’ agreement to arbitrate.” In this as in so many things, wording is critical. The petition ends with a plea for summary reversal. Which, given the current state of things, will certainly not be summery reversal.

I’ll be here all week. Remember to tip your waitresses.

Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relists

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13 conference)

 

United States v. Stitt, 17-765

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the April 13 conference)

 

United States v. Sims, 17-766

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the April 13 conference)

 

Frank v. Gaos, 17-961

Issue: Whether, or in what circumstances, a cy pres award of class-action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

(relisted after the April 13 conference)

 

Lamps Plus, Inc. v. Varela, 17-988

Issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

(relisted after the April 13 conference)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13 conference)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13 conference)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13 conference)

 

Smith v. United States, 17-7517

Issue: Whether the statement of general principle that a burglary of a vehicle is not generic burglary within the meaning of the Armed Career Criminal Act because vehicles are not buildings allows generic burglary status when the vehicle is a dwelling place.

(relisted after the April 13 conference)

 

Bucklew v. Precythe,  17-8151

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

(relisted after the April 13 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Allen v. United States, 17-5864

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23 and March 2 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13 and April 20 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29 and April 13 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29 and April 13 conferences)

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Argument analysis: Justices look for middle ground on criminal restitution

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Argument analysis: Justices look for middle ground on criminal restitution

The issue before the Supreme Court in Lagos v. United States is the interpretation of a restitution statute applied in tens of thousands of criminal sentencing hearings each year. The Mandatory Victim Restitution Act requires courts to impose restitution for victims of a large swath of enumerated federal crimes. Under the MVRA, found at 18 U.S.C. § 3553A, the court must order a criminal defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” The court spent part of yesterday morning grappling with how to construe that language. The petitioners argued for a narrow reading of the statute, while the federal government took an expansive approach. In the absence of any specific legislative history giving guidance as to how to interpret these words, the justices appeared to lean somewhere between the two extremes.

The petitioner, Sergio Fernando Lagos, was the owner and operator of a holding company, which in turn owned a cross-border trucking company, USA Dry Van Logistics. On behalf of Dry Van, Lagos entered into a financing agreement with a lending company, General Electric Capital Corporation. Over the course of two years, Lagos and his business partners committed numerous fraudulent acts. Eventually, Lagos and his partners disclosed the fraud to GE Capital, and shortly thereafter, Dry Van filed for bankruptcy. After Lagos informed the company of the fraud, GE Capital began an internal investigation. As part of that investigation, GE Capital hired forensic experts, financial consultants, and several law firms, including two high-powered firms that provided GE Capital with legal advice related to the fraud and represented the company in Dry Van’s bankruptcy proceedings. The costs of GE’s internal investigation and the legal representation totaled almost $5 million. At sentencing, the court ordered Lagos to reimburse the company for those costs as part of a restitution order. The question before the court is whether the MVRA requires Lagos to repay the costs of the internal investigation and legal representation in the collateral bankruptcy proceedings.

Daniel Geyser, representing Lagos, began the argument advocating for a surprisingly constrained reading of the statute. Geyser’s argument was essentially two-fold: The MVRA only applies to the investigation or prosecution of a federal criminal offense, and only to reimbursement of incidental, out-of-pocket expenses during that federal criminal investigation and prosecution. According to Geyser, the statute does not require reimbursement of costs pursuant to any investigation – a state government investigation, an SEC investigation, an internal corporate investigation – that precedes the federal criminal investigation. Geyser also balked at the suggestion that a defendant should have to reimburse a company’s internal investigation expenses if that investigation was conducted at federal law enforcement’s request or direction. Thus, even if the federal government asked or compelled the company to investigate, and then used the results of that investigation in its prosecution, the statute still would not authorize the reimbursement of those investigation expenses or related attorney’s fees, according to Geyser, because the statute only covers incidental, out-of-pocket expenses associated with making oneself available to the prosecution. As he put it, “Attorney’s fees and private investigation expenses don’t look like child care and transportation.”

Geyser was peppered with questions suggesting that most justices believed this interpretation of the statute was too constricted. As Justice Samuel Alito remarked, “You’re reading a lot into [this statute].” Sensing the resistance, a few minutes into the argument, Geyser pulled back from his initial strategy and proffered an “alternative theory” that the statute might cover investigative expenses or attorney’s fees so long as they are incurred “during the participation of the government’s [criminal] investigation.” Several justices appeared to find the alternative theory more compelling. However, they seemed less convinced by Geyser’s argument that the MVRA precludes reimbursement of any costs related to GE Capital’s participation in the bankruptcy proceedings. “Attendance at proceedings related to the offense” refers to physical attendance, not trying to figure out how to litigate and recover financially in the bankruptcy case, he argued.

Representing the federal government, Assistant to the Solicitor General Michael Huston contended that the statute does not limit a victim’s recovery to costs incurred during participation in the government’s investigation of the offense. Rather, according to Huston, participation in any necessary investigation during which the victim accrues expenses requires reimbursement under the MVRA. The only cap on such recovery is the statutory requirement that those expenses be “necessary,” which, Huston argued, means “ordinary, reasonable, expected.” This broad interpretation is in line with Congressional intent, Huston maintained: “Congress wanted to make sure that even the stuff that wouldn’t readily come to your mind is covered.” And as Huston repeatedly pointed out, Congress was explicit about making the restitution imposed under this statute mandatory, regardless of a defendant’s ability to pay.

The justices seemed less than convinced by the government’s argument. As Justice Stephen Breyer remarked early on, “You have a big problem, I think, with the language of the statute.” Highlighting other federal restitution statutes enacted around the same time, each with different language, Justice Sonia Sotomayor told Huston, “I think I have to give meaning to different statutory terms that were passed at the identical time.” Some justices also appeared to have concerns about tying up the trial courts with extended hearings on what expenses were “necessary” and what proceedings would be “related to” the offense. As Justice Neil Gorsuch inquired, “your reading invites district judges to engage in long protracted collateral proceedings… Where is the stopping point here?” Because the statute was clearly written with an individual defendant in mind, Justice Elena Kagan noted, its application is particularly difficult in cases involving a corporate defendant.

The court appeared to be particularly bothered by the lack of limits on the amount of restitution that could be imposed under the government’s expansive theory. Several justices posed questions about various aspects of the statute’s parameters. Gorsuch even suggested that perhaps “the government’s effort here is really to externalize the costs of its own investigations in corporate … situations.” Several justices noted their frustration with the amount of uncollectable criminal debt, which is not dischargeable in bankruptcy proceedings, remains unpaid to the victim, and weighs down the defendant in perpetuity. This discomfort may result in the court’s appealing to Congress to return to a discretionary restitution system. In the meantime, a majority of justices seemed to lean toward a version of the “alternate theory” put forth by Geyser, which would allow restitution for costs incurred by the victim while participating in the government’s investigation of the offense.

Sotomayor alerted the court to one potential alternate method of reimbursement that might encourage justices to adopt this middle ground. Through her questioning, Sotomayor highlighted a provision in the MVRA that allows a criminal conviction to establish liability in a civil case. As a result, she pointed out, the corporation can sue for reimbursement of corporate losses in a civil suit, with only the amount of restitution up for debate in that proceeding. In other words, the MVRA as it stands already contains a provision that allows corporations to be reimbursed for corporate internal investigations and attorney’s fees; it just requires corporate victims to utilize the statute’s civil remedy instead of relying on the criminal sentencing process. To the extent that a majority of the court is concerned that a narrow interpretation of the statute might go against Congress’ overall goal in passing the MVRA, the existence of this civil remedy within the MVRA might be what convinces a majority to go with Geyser’s alternative reading of the statute.

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Argument analysis: Court debates standard for violating tribal fishing rights

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Argument analysis: Court debates standard for violating tribal fishing rights

In yesterday’s oral argument in Washington v. United States, the Supreme Court debated the scope of tribal fishing rights under 19th century treaties between the United States and northwest Indian tribes. In particular, were the lower courts correct that hundreds of the state of Washington’s under-road culverts, which obstruct salmon passage to some extent, violate the treaties? The dispute is a long-running one — so much so that it dates back to Justice Anthony Kennedy’s service on the U.S. Court of Appeals for the 9th Circuit, prompting his recusal from the case.

The eight justices who did participate in the argument focused largely on the correct standard for violations of the treaties. (As I explained in my argument preview, the case also presented two other questions related to remedies, but these were scarcely discussed.) The state of Washington, represented at the podium by the state’s solicitor general, Noah Purcell, argued that the state would violate the treaties if “a state barrier is causing a large decline in a particular river and … it’s not justified by substantial compelling interests.” In contrast, the federal government and the tribes, represented by Allon Kedem and William Jay, respectively, argued that the treaties are violated by a “substantial degradation” of the salmon population. For much of the argument, the justices pressed each of the litigants to provide more clarity about their respective tests.

Regarding Washington’s proposed standard of a “large decline,” Justice Elena Kagan asked Purcell, “[D]o you have a number in your head?” Purcell answered that decreasing the salmon population by “half or anything approaching half” would qualify, whereas a decrease of 1 to 5 percent would not. Justice Neil Gorsuch countered that five percent “is often deemed a material number” in other legal contexts, like securities law — why not here? Purcell responded that setting the bar so low would transform the treaties into “a catch-all environmental statute that will regulate every significant activity in the Northwest.” And, he argued, the decrease at issue in this case was only a fraction of one percent (The tribes and federal government dispute that figure.). The justices also questioned Purcell’s assertion that the state can cause salmon populations to substantially decline as long as it has a “substantial compelling interest” at stake. Where is that in the text of the treaties, Gorsuch and Kagan asked. Justice Sonia Sotomayor also expressed skepticism that the state could escape its treaty obligations “merely because [it] wanted to spend less money” building compliant culverts. Purcell emphasized that the state was not trying to create a test it would always win; some of its culverts would require replacement under its test. In any event, Purcell stressed, the district court did not consider the federal government’s new proposed test, and so if the court were not inclined to reverse, it should at least remand with instructions for the district court to consider that standard in the first instance.

Questioning the attorneys on the other side, the justices again asked for clarity and quantification. Both Kedem and Jay declined to supply a precise number that would constitute “substantial degradation,” urging instead a context-dependent standard involving whether the damage was “appreciable” and “durable.” In addition, Kedem and Jay both fielded questions about the role of common law in their arguments — both had argued that common-law concepts in place at the time the treaties were negotiated barred obstructing fish passage — and whether the court needed to remand to allow the lower courts to take the first pass at a common-law theory. The attorneys said no. They also emphasized that they were not (contrary to the state’s characterization) seeking to guarantee the tribes a “moderate living” from salmon fishing, and they disputed that any of their substantial-degradation theory was new on appeal. As for whether the federal government’s numerous dams in the northwest U.S. violate its own standard, Kedem and Jay noted that the question had not been addressed in this litigation. They further observed that many federal dams include salmon ladders, and many of those that don’t have involved payments to tribes for the damage done to fish.

For a case in which the briefing raised potentially far-reaching questions about treaty interpretation, federalism and equitable remedies, this oral argument was remarkably in the weeds. Both sides spent significant energy parsing the district court injunction that is under review and debating its accuracy — but as Justice Stephen Breyer and others pointed out during the argument, the Supreme Court is unlikely to devote its opinion to correcting factual findings. The court does seem poised to announce some standard for violations of the treaties. If the court then calls for the lower courts to determine how to apply that standard, it may commence yet another chapter in this long-running dispute.

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