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Sketches of Supreme Court arguments

Two Opinions and Multi District Litigation

Here are some sketches from Tuesday at the Supreme Court.

 

The Court heard arguments in Gelboim v. Bank of America Corp., a case from the Second Circuit which turned down an appeal of a case in a Multi District Litigation because the other consolidated cases were still pending, at least that’s what I think it may be about. It’s complicated.

Opinions in two cases were also announced. Warger v. Shauers, about the admissibility of one juror’s testimony about another juror’s statements (above), and Integrity Staffing Solutions v. Busk, about compensation for employees who have to go through security screen after completing their shift (below).

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All Aboooard . . . the Amtrak Limited

The Supreme Court today heard arguments testing the regulatory authority of Amtrak, a quasi-private for-profit company created by congress in 1970 to prop up passenger rail service. The tracks are owned by the rail-freight companies but Amtrak gets priority to keep its trains on time.

The case is Department of Transportation v. Association of American Railroads. You can read Lyle Denniston’s reporting on the argument here.

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The Ambiguous Pregnancy Discrimination Act

United Parcel Service came to the Supreme Court this morning to argue that it is pregnancy-blind, that it treats expectant female employees the same as any other employee injured off the job.

The Pregnancy Discrimination Act 1978 says, “. . women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.” The language sounds plain and the intent of the law obvious, but when applied it seems to be ambiguous.

When Peggy Young became pregnant and her doctor ordered her to not lift heavy objects she asked her employer, UPS, to put her on light-duty. Instead UPS placed her on unpaid leave, so she sued.

Young’s lawyer, University of Michigan law professor Samuel Bagenstos, argued that UPS made accommodations for three similar groups: those injured on the job, those covered by the Americans With Disabilities Act and employees whose driving licenses were suspended or revoked.

“Well, Ms Halligan, for the democratic process to work as it should, the PDA has to be given a fair reading,” said Justice Kagan. “And what we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers.”

The lawyer for UPS, Caitlin Halligan, was questioned aggressively by Justices Ginsburg and Kagan. They asked so many questions that it was hard to get a sketch of Halligan since she was turned away when facing the two justices.

Lyle Denniston’s SCOTUSblog analysis of the argument is here.

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The Hapless Bank Robber

While it poured outside the Supreme Court yesterday morning the Justices inside heard arguments about a statute that imposes a minimum ten year sentence on a bank robber who “forces another person to accompany him”.

Larry Whitfield and an accomplice, armed with an AK-47 and a .357, tried to rob a Gastonia, North Carolina credit union but were foiled by a metal detector that automatically locked the bulletproof lobby doors. Fleeing in a Crown Victoria they crashed into the median. Whitfield got away, while his accomplice was caught.

The would-be bank robber, who had ditched his firearm, first broke into a vacant house but when the owner showed up he threatened her with a knife and ran. Next, he entered the home of 79-year-old Mary Parnell. He forced Parnell to accompany him a few feet into a room where he called and texted a friend, telling a terrified Parnell, “Ma’am, just calm down. I’m probably more scared than you are, and I’m actually just trying to leave.”

Mary Parnell was having a heart attack and died. Whitfield got 20 years for the robbery plus five for forcing Parnell to accompany him to the other room.

The case is Whitfield v. U.S.

Read Amy Howe’s SCOTUSblog account of the argument here.

 

 

 

 

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Facebook and Ginsburg’s New Jabot

After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.

Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.

The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”

When it came the government’s turn at the lectern, Chief Justice Roberts asked, “So how do you start out if you want to be a rap artist? Your first communication you can’t say, I’m an artist, right?”

“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet?”

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Alabama Redistricting

After the 2010 census Alabama redrew its voting map with the result that some districts became more white/Republican and others more black/Democratic. Two groups, the Alabama Legislative Black Caucus and the Alabama Democratic Conference challenged the state’s redistricting plan saying that the plan “packed” predominantly African American districts on the basis of race.

It’s a complicated and unusual case where the sides historically arguing racial quotas have switched. Rather than attempt to explain the argument, I’ll just post my pictures and refer the reader to Richard Hansen’s analysis on SCOTUSblog.

” . . the so-called “crab claws” that the parties describe that extend out from the district capture African American populations.” -Solicitor General Verrilli

 

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“Everyone Loves Cell Phones . . .

. . . Nobody likes towers, apparently.” said Justice Breyer during yesterday’s argument in T-Mobile South v. City of Roswell.

The city council of Roswell, Georgia – which has more cell towers than square miles – denied a request by T-Mobile to erect a cell phone tower in a residential area. No reason for the decision was given in the city’s letter of denial though the meeting minutes were supplied within a few weeks.

T-Mobile’s lawyer told the Court that the explicit reasons “supported by substantial evidence contained in a written record” should accompany the city’s decision.

The Solicitor General’s lawyer said that it is sufficient that the reasons for the denial may be found in the minutes.

And the lawyer for the City of Roswell suggested an interesting approach in that he supported the SG’s argument that the reasoning can be found in the minutes but added that the letter of denial was not actually the decision. The decision by the city council, he argued, was not taken until the minutes were approved. The earlier letter of denial was merely a notification.

There was, of course, much more to the argument than what I’m capable of reporting. For more see Miriam Seifter’s analysis on SCOTUSblog.

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A Banner Day for Fish Stories

The case of a Florida fisherman convicted under the Sarbanes-Oxley Act for destroying potential evidence – in this case red grouper – had the potential for comedy when the Supreme Court heard arguments today. To that end, I did my part. I regularly do a banner sketch for SCOTUSblog in the morning when I arrive at the Court, usually of the line on the plaza outside or of lawyers waiting to be admitted to the bar. This morning I tried something a little different.

Anyway, hope you like it. Below are a couple sketches from the argument. And here is a link to Lyle Denniston’s account of how it went – not so good for the government, I’m afraid.

The case is Yates v. U.S.

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Good Day in Court for TSA Whistleblower

When the Transportation Safety Administration decided to cut back on air marshals for overnight flights one of those marshals leaked the information to MSNBC. Congress was furious when the news broke and the TSA promptly withdrew the cutbacks.

Former air marshal Robert MacLean was fired when the agency learned that he was the source of the leak. MacLean then appealed under the Whistleblower Protection Act, but was turned down because the act does not protect disclosures “specifically prohibited by law”. But the fact is that MacLean never broke the law, only TSA rules, and so he won in the lower court.

The Supreme Court agreed to the government’s petition seeking a reversal, but today at argument that seemed unlikely.

 

Several justices pointed out that the act refers only to laws, not agency regulations. “So it is prohibited by regulations, let’s not play games,” Justice Antonin Scalia told deputy solicitor general Ian Gershengorn.

The lawyer for the former air marshal, Neal Katyal, had an easier time. “The facts,” Justice Sonia Sotomayor told him, “are very much in your favor here.”

 

 

 

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Passport Case and Forgot to Turn the Clock Back

Trouble With The Clocks

As usual the Justices came to the bench at 10:00 sharp but the clock above them showed 8:00. The clock at the other end of the courtroom read noon, or midnight. Seems nobody remembered to turn the clocks back this weekend as we went off Daylight Saving Time.

“I’ll alert counsel that the clock behind you is not accurate” said Chief Justice Roberts. “You shouldn’t look at the clock anyway, but particularly not today”.

With that said, and as the hands on the clock faces continued to move in fits and starts, always out of time, the Court heard arguments in Zivotofsky v. Kerry.

The case, about a law passed by Congress in 2002 that orders the State Department to “record the place of birth as Israel” in the passports of American children born in Jerusalem, was first heard by the Supreme Court in 2011.

Lyle Denniston’s take on the argument is here.

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