Justice Ginsburg was absent from the bench this week, recovering from recent surgery. She will continue to work from home next week, participating in the cases argued through transcripts and the briefs. Her odds of making a full recovery are good, and I’m looking forward to seeing her back on the bench for the February sitting.
No blockbusters this week. I sketched three of the arguments, one each day. Monday’s focused on whether the Fair Debt Collection Practices Act applies to law firms acting as “debt collector” in nonjudicial foreclosures; exciting stuff.
Of more interest, at least to this sketch artist, and something I could make into a SCOTUSblog banner was Tuesday’s Indian treaty argument.
Several members of the Crow Tribe were present in the courtroom to for the arguments in Herrera v. Wyoming.
Interesting that Samuel Enemy-Hunter, pictured here in the right background, was allowed to wear tribal head-dress in the courtroom while in November, when Carpenter v. Murphy was argued, court personnel made an official of the Muscogee Creek Nation remove his.
And finally, I had no idea that Wednesday’s argument, Franchise Tax Board of California v. Hyatt, was such a big deal but evidently for constitution nerds, whom I admire, this case is their meat and potatoes.
A crowd of supporters showed up for what was expected to be a lenient sentencing for former national security advisor Michael Flynn, some no doubt hoping the judge would criticize the government for coming close to entrapment. But in an unexpected twist Judge Sullivan, who is known for holding government officials to a higher standard, instead focused his ire on the defendant.
“He was a high-ranking government official, advising the president of the United States,” Sullivan said. “I’m not hiding my disgust, my disdain, for this criminal offense.”
After repeatedly rebuking Flynn and having him admit on the record that he knew when he lied to the FBI that he was breaking the law, Judge Sullivan recessed the hearing so that Flynn could consult with his lawyers and decide if he wanted to continue with sentencing and almost certainly go to jail or continue cooperating with the government in the prosecution of his former business partners, and face sentencing at a later date. Flynn chose to postpone sentencing.
Russia is just as gun crazy as the U.S. so why not make connections and alliances with the NRA as a way to influence American policy? It was a good plan and Maria Butina sounded proud of her efforts as she entered a plea of guilty in federal court this week. Her answers to the judge’s questions were remarkably rapid and crisp, almost as if she were responding to a drill sergeant.
Answer: an exception to the double-jeopardy rule.
Here are a few sketches from Thursday’s argument in Gamble v. United States where Terance Gamble challenges his prosecution and conviction for the same offense in both state and federal court despite the Fifth Amendment’s rule that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”
On Monday the justices heard argument over whether an antitrust lawsuit brought by iPhone users unhappy that apps may only be purchased through the Apple store can move forward. Apple claims it does not have a monopoly because it is the app developers who set the prices.
Tuesday saw argument about who owns Oklahoma brought by members of the Muscogee Creek Nation.
Wednesday’s only case was about seizure of assets upon criminal conviction in state court and whether that violates the Eighth Amendment’s ban on excessive fines.
Just posting November’s SCOTUS sketches ( I missed the first couple days, so starting on October 31 ) without comments except to note that the election day SCOTUSblog banner at the end of this post is a work of “artistic license.” We know, from his confirmation hearing testimony, that Justice Kavanaugh does not vote, and I expect that may be the case for other justices as well.
The formal investiture of a Supreme Court justice is a merely ceremonial event, and after the fact for Justice Kavanaugh who has been on the bench from the beginning of the this term. But Thursday’s script was slightly different because of two events of the previous day, the resignation of AG Sessions, and Justice Ginsburg’s fall resulting in fractured ribs. As a result Justice Ginsburg was not present on the bench, and the new Acting AG, Matthew Whitaker was at the lectern.
Otherwise it was a packed house with most, if not all, of the DC Circuit present, including Judge Merrick Garland. A lot of US District judges too. And everyone else you would expect like Senators McConnell and Graham ( the later arriving and leaving with the president, further feeding speculation that he may become the next AG ), Kavanaugh’s parents, wife and daughters. POTUS and FLOTUS were the last to arrive and the first to leave.
What can one say, yet another mass shooting. This time at Pittsburgh’s Tree of Life Synagogue. Eleven worshipers murdered.
The shooter, pushed into the courtroom in a wheelchair, appeared remarkably unremarkable. A poor pathetic shlub who became the instrument of evil.
Former Trump campaign manager, and now convicted felon, Paul Manafort appeared dour as he was wheeled into the courtroom for a pre-sentencing hearing in Alexandria yesterday. When Judge Ellis addressed him directly Manafort just stared into space. No details were given about his health, why he was in a wheelchair, or why his right foot was shoeless and covered with a thick white sock.
Manafort’s attorney Kevin Downing told Judge Ellis there are “significant issues with Mr. Manafort’s health right now that have to do with his confinement.”
It is not unusual for defendants facing incarceration to develop “significant health issues” shortly before sentencing. Judge Ellis set a sentencing date of February 8.
An unusual start to the new term of what can now be truly called the Roberts Court. After Justice Kennedy’s retirement the Chief Justice, who on the bench occupies the center chair, now also becomes the center of gravity of the Court as the most likely swing vote.
Last week saw eight justices on the bench. After a weekend Senate confirmation vote followed by a swearing in at the Court, Justice Kavanaugh took his seat on the bench this Tuesday to hear arguments. After the drama of the past weeks it almost felt “normal’. No protesters in the courtroom, nor even on the plaza when I arrived early Tuesday morning though some did show up later.