On Tuesday Justice Ginsburg announced the first opinion of the Court in a double-jeopardy case, Bravo-Fernandez v. U.S., argued on the first day of the term. Ginsburg spoke at length despite a severe hoarseness that made it hard to understand, and naturally that led to some speculation about her health. Once the argument got under way, though, she participated as vigorously as usual.
The Court heard three arguments this week, only two of which I sketched. Tuesday’s case, Moore v. Texas, was about the standard used to determine if a Texas death row inmate is too intellectually disabled to be executed.
Wednesday’s immigrant detention argument in Jennings v. Rodriguez pitted the plenary powers doctrine (I had to look that up) versus judicial review.
. . . and outside the it was a very soggy couple of days . . .
With the election of Donald Trump to president and his promise to appoint a new justice in the mold of Justice Scalia it appears that not much will change on the Court in the near future.
On the dreary morning after, visitors to the Supreme Court still lined up on the plaza, members of the bar still gather by the statue of John Mashall, and the justices still took to the bench to hear arguments. The only thing remarkable, and it may mean nothing, was that Justice Ginsburg appeared to be wearing her “dissent jabot.” It’s a kind of collar, not exactly a traditional jabot, with rhinestones that the justice wears when announcing a dissent from the bench. Whether she wore it to make a subtle statement or it was just the first thing she grabbed out of her jabot closet, I don’t know. But I also noticed she wore no earrings, which, for a justice know for her sense of style, is not usual.
And so, for now, life goes on. Below are my sketches of the week’s arguments.
Posted in Arguments
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Monday was halloween so I had a little fun with the SCOTUSblog banner.
It was also the day Wonder, the goldendoodle service dog, visited the Court, though only outside.
I was hoping Wonder would be accompany his young charge, Ehlena Fry, into the building even though Wonder is officially retired. The Fry family was at the Supreme Court to hear arguments in Fry v. Napoleon Community Schools, a case originating from their battle with the school to allow Ehlena a service dog.
Below are sketches from the argument in Fry, as well as three other arguments heard this week: Star Athletica v. Varsity Brands, State Farm Fire and Casualty v. U.S. ex rel. Rigsby, and Venezuela v. Helmerich & Payne Int’l.
The Supreme Court heard arguments in two cases yesterday morning – a third argument was heard in the afternoon, but I didn’t sketch that one.
The first case, Samsung Electronics v. Apple, involves the design patents of Apple’s iPhone. Samsung, having lost in the lower courts, was ordered to pay Apple all the profits from smartphones that copied design elements of the iPhone, close to $400 million. Samsung naturally argues that such an outsized award is unfair considering their smartphones are more than just the package.
In the second case, Pena-Rodriguez v. Colorado, the justices were asked to make an exception to the rule that jurors cannot testify about deliberations. Here one of the jurors expressed a strong racial bias against the defendant and his alibi witness, both of whom are Hispanic.
Here are sketches from three of the five cases argued in the Supreme Court during this first week of the October 2016 term (wish I hadn’t skipped Tuesday’s bank fraud argument, Shaw v. U.S., and missed Justice Breyer’s Kardashian hypothetical ).
Tuesday’s collateral estoppel double-jeopardy case, Bravo-Fernandez v. U.S. :
Wednesday’s insider trading case, Salman v. U.S. :
. . . and the Texas racial bias in death penalty arguments in Buck v. Davis :
. . or the all catholic bench.
As the first day of Rosh Hashanah this year coincided with the first day of the Supreme Court’s new term no arguments were heard on Monday. Justices Ginsburg, Breyer and Kagan were absent, presumably in observance of the Jewish new year. That left the remaining five justices, all of whom are roman catholic. . . . L’shanah tovah !
It’s been a strange Supreme Court term, like a meal that doesn’t satisfy. With only eight members on the bench after Justice Scalia’s death the odds were good that the last blockbuster opinion of the term would fall to a tie.
But, once again, Justice Kennedy was the fulcrum that allowed the Court to do some heavy lifting. In a 5-4 opinion authored by Justice Breyer in Whole Woman’s Health v. Hellerstedt the lie was exposed that Texas’ restrictive abortion clinic regulations were enacted to protect women’s health.
That left the dissenters arguing only on procedural grounds that Whole Woman’s Health had lost an earlier round and should never have got another bite of the apple.
Oh, and there was also the unanimous opinion in McDonnell v. United States. It’s perfectly okay now, through gifts and cash, to purchase access to politicians, even if it stinks.
The big news of course on Monday was the Supreme Court’s per curiam opinion in Zubik v. Burwell (and other consolidated cases) that decided nothing but encouraged the two sides to reach a compromise.
The other case left hanging is Spokeo v. Robins. In a 6-2 opinion the Court asked the Ninth Circuit to take another look at the “concreteness” of the harm to Thomas Robins when Spokeo.com posted inaccurate information about him.
An interesting case, and not just because I live in Baltimore.
Majestic Auto Repair was paying up to $300 for each damaged vehicle Baltimore police would steer their way from the scene of an accident. By the time the FBI broke up the deal some sixty officers were involved.
One of the officers, Samuel Ocasio, was tried and convicted on three counts of extortion and one count of conspiracy to commit. He appealed the conspiracy conviction on the grounds that in order to conspire to obtain property “from another,” conspirators must agree to obtain property from someone outside the conspiracy. Since the conspiracy was between Ocasio and the owners of Majestic Auto Repair who were paying the bribes out of their own pockets, and not “from another”, there was no conspiracy.
The Court didn’t buy it. Justice Alito delivered the 5-3 opinion, sketched above. For an in-depth explanation of the opinion go here.
The Supreme Court heard their last argument of the term yesterday, an appeal of former Virginia governor McDonnell’s conviction for accepting gifts and favors in exchange for “official acts”. I wasn’t there to sketch it. Instead I was covering the sentencing of former Speaker of the House Dennis Hastert (those sketches will be posted soon).
The last day of argument for me was Monday when the Court heard two cases related to copyright and patents, not usually the most exciting. I could follow the first case, Kirtsaeng v. John Wiley & Sons, Inc., which first came to the Supreme Court a couple of terms back and now returns on the issue of awarding attorney fees.
But the second case, Cuozzo Speed Technologies, LLC v. Lee, left me so confused I’ll just post the sketches.