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Sketches of Supreme Court arguments

Whistleblower Free Speech and Breyer Holds Up Some Fingers

Edward Lane was fired from his job at an Alabama community college after testifying truthfully before a grand jury and at trial about corruption at the college. Lane sued saying he was let go in retaliation, but the lower courts, citing an earlier Supreme Court opinion, ruled against him. He was represented at the Court by lawyer Tejinder Singh, who I have to say was fun to draw.

On the other side of the argument were Alabama’s Attorney General, who’s drawing I never finished, and lawyer Mark Waggoner, who was at the lectern a bit longer.

You can read about it here.

Earlier, the Court heard arguments in a patent case, Nautilus v. Biosig Instruments. Biosig has a patent on a device used in exercise machines to measure heart rate. It’s basically a bar with incorporated electrodes that receive signals from contact with a person’s hands. Nautilus claims the patent is too vague, particularly in describing the placement of the electrodes.

Now comes Justice Breyer, “I’m a little confused here. Imagine there are two kinds of electrodes, a blue one and a green one, and you have a blue one and green one on left hand and a blue one and green one on right hand. . . you cannot let them touch . . .  I got that. And suppose on your left hand you put the blue one here and the green one there. And in the right hand, you put the blue in here and the green in here. . . . Does it work or not?”

And so it goes for awhile until Justice Scalia interrupts, “Let the record show that [Justice Breyer] is holding his fingers in the air.”

Anyway, it’s all “insolubly ambiguous”.

 

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Old News or Yesterday’s Sketches Today

Overshadowed by yesterday’s affirmative action opinion in Schuette were arguments in two newsworthy cases, Susan B. Anthony List v. Driehaus, and ABC v. Aereo.

“Ministry of Truth” was the Orwellian label SBA List’s lawyer, Michael Carvin, used when referring to an Ohio law that makes it a crime to use false statement in an election campaign.

The lawyer for the State of Ohio reminded the Court that issue is not the constitutionality of the law, but whether plaintiffs can show harm.

The second case argued was about a company, Aereo, Inc., that stores broadcast TV programs, which it then makes available to consumers who pay for an individual “antenna”. The broadcast networks say this is simply a work around to avoid copyright.

The lawyer for Aereo, David Frederick, tried to convince the Justices that his client only “is attempting to entice consumers to replicate on the cloud what they can do at home at lower cap costs and more efficiency.”

“. . if all they have is a gimmick,” said Clement in rebuttal, “then they probably will go out of business and nobody should cry a tear over that.”

 

 

 

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Argentina and POM Wonderful

The Supreme Court heard two cases today, the first day April’s two-week argument session after which the Court will only sit to deliver this term’s opinions.

The first case, Argentina v. NML Capital, concerns Argentina’s default on bonds the government issued in 1997, and stopped repayments when the domestic economy tanked in 2001. The issue before the Court is how far can creditors go in searching for assets.

The second argument, POM Wonderful v. Coca-Cola, is about truth-in-labeling. Was Coca-Cola guilty of false advertising under the Lanham Act when it labeled its product “Pomegranate Blueberry” even though it was mostly apple juice with only 0.3% pomegranate and 0.2% blueberry? POM Wonderful, which grows and sells pomegranate products, especially juice, thinks so.

The two sides certainly brought the heavy-hitters, former Solicitor General Seth Waxman and Stanford Law professor Kathleen Sullivan, to the lectern.

Though, not everyone found the arguments riveting.

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Between Scylla and Charybdis

I neglected to post sketches from the March 31 arguments in Alice Corporation v. CLS Bank International. Here they are, better late than never.

Each day CLS Bank does about $5 trillion in transactions and uses a computer program to insure that everything balances out at the end of the day. Alice Corporation has a patent on an application that does the same thing by creating shadow accounts for all parties and not allowing transactions to go through unless all credits and debits balance out above zero.

The Court has previously held that natural processes (Mayo) and abstract ideas (Bilski) are not patentable. Is Alice Corporation’s patent really just the idea of solvency applied by a computer to balance the books?

Justice Breyer’s pharaohic hypothetical put it this way: “I mean, imagine King Tut sitting in front of the pyramid where all his gold is stored, and he has the habit of giving chits away.  Good for the gold, which is given at the end of the day.  And he hires a man with an abacus, and when the abacus keeping track sees that he’s given away more gold than he has in storage, he says, stop.”

On the other hand, software developers won’t have much incentive if their computer programs are unpatentable.

Again, Justice Breyer, “. . . there are a number of suggestions as to how to go between Scylla and Charybdis.  . . . I need to know what in your opinion is the best way of sailing between these two serious harms.”

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Hobby Lobby and Conestoga Wood Specialities

Supporters lined up behind the owners of two family owned businesses, Anthony Hahn, second from right, and Dave Green, far right, on the lower level of the Supreme Court building this morning. They were waiting to hear arguments in two cases concerning Obamacare’s required contraceptive coverage by for-profit employers. Hobby Lobby and Conestoga Wood Specialities both embrace Christian principles that cause them to object to forms of contraception that they believe are tantamount to abortion.

It’s been a long day of lively arguments, lots of drawings, and even a little bit of snow, so forgive me if I forgo further comments and simply post the day’s sketches. There are links at the bottom to reporting on the arguments.

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bSC140325_Kagan

Lyle Denniston’s argument recap here.

NYT story here.

WaPo story here.

And a must-read from Dahlia Lithwick here.

 

 

 

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Fraud-On-The-Market Theory, What’s That?

This morning before the Supreme Court convened to hear a securities fraud case I spotted lawyer David Boies, who would be arguing for the class action plaintiffs (here the respondents), standing by himself as if in reverie, gazing at the statue of Justice John Marshall. Unfortunately Tom Goldstein, another veteran of the Court, sketchbombed my drawing under the pretense of having a chat with Boies.

The argument itself, Halliburton v. Erica P. John Fund, was way over my head. Fraud-on-the-market theory? Price impact v. market efficiency ? Better that I leave it alone and just post my sketches.

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Lethal Force and the High-Speed Chase

Frigid temperatures this morning means that, no, I didn’t sketch that Carolina wren al fresco outside the Supreme Court. A friend took a picture of it yesterday in Ellicott City which I stole for this composition. So, sue me.

Do police officers who fire shots at a vehicle during a high-speed chase violate the Fourth Amendment by using “unreasonable” force?  Most of the Justices seemed not to think so, as long as the chase itself poses a danger.

Chief Justice Roberts: “is there any situation in which it would violate clearly established constitutional law for the police to use lethal force?”

Michael Mosley: “I hate to use television as an example, but perhaps the way the white Ford Bronco fled in the early 90’s that everybody saw on TV.”

The lawyer arguing for the daughter of the driver slain in the volley of shots fired by the police was peppered with questions from the bench, often incredulous or sarcastic.

Justice Scalia: “Okay, . . . You think it is clearly established law that you cannot shoot to kill a driver whose car is moving? Is that it?” 

Gary K. Smith: “If . . . “

Scalia: “Is that the principle you say is clearly established?”

Smith: “If doing so . . . “

Scalia: “My goodness, they do it all the time. You watch the movies . . . it happens all the time. Are these movies unrealistic? You cannot shoot to kill somebody in a moving car?”

Smith: “In a . . . “

Scalia: “And that is not just your view. It is, you say, clearly established law?”

The case is Plumhoff v. Rickard

 

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A Little Excitement at the Staid Court

SCOTUS in Snow
After a slippery sloppy commute on a snowy morning a couple of quiet hours listening to patent law arguments seemed like a good opportunity for a snooze. I was sketching on auto-pilot as the first argument, Octane Fitness v. Icon Health & Fitness, was concluding when a loud voice coming from the back of the courtroom startled me out of my somnolence. “Corporations are not people, money is speech. Overturn Citizens United.” shouted a young man before Court security officers whisked him away.

He was later identified as Noah Newkirk and charged with making “a harangue or oration . . . in the Supreme Court Building.” I think this may be him. The young man, it turns out, is Noah Kia Newkirk, a member of a group called 99Rise.org whose aim is to “get big money out of American politics.” It appears his outburst was in part staged for a video camera that was smuggled into the courtroom. The video shows that this is not the first time this group has captured the Court on camera. Footage at the beginning is from McCutcheon v. FEC, a campaign Finance case argued in October and yet to be decided. It also turns out that the footage at the beginning, though labeled McCutcheon v. FEC, is actually from arguments in  Burt v. Titlow, another case argued the same day.

I initially sketched him with a moustache and goatee, but on reflection I think he just had a heavy five o’clock shadow. It all happened very fast and I am not possessed of a photographic memory. Not a very good drawing.

Anyway, here are a couple sketches from the argument that I managed to finish. I think they are more successful.

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Baseball Bats and Rotten Tomatoes

The lawyer for a home mortgage loan fraudfeasor (I learned a new word today) had a number of colorful hypotheticals tossed at him by the Justices as they tackled a question of restitution. Here’s what he had to juggle, starting with Justice Breyer who is the Talmudic scholar of hypotheticals:

Breyer: “Mrs. Smith, I have a bridge I’d like to sell you.”. . “But I also gave her my valuable Babe Ruth bat.”

Alito: “Suppose what the person who perpetrated the fraud returns is a truckload of tomatoes . . . and by the time the tomatoes can be sold they’re all rotten.”

Scalia: “You’re really confusing me. I . . I . .both the baseball bat and the truckload of tomatoes?”

The case is Robers v. United States

 

 

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Justices Hear Arguments On EPA’s “Tailoring Rule”

Even before the Justices took the bench for what might have, mistakenly, seemed like a blockbuster argument on global warming – there was even a demonstrator in polar bear costume on the plaza – the spotlight shifted to the Court’s decision not to hear two NRA challenges to gun regulation laws.

Today’s case, actually six different lawsuits rolled into one, was not about the Environmental Protection Agency‘s power to regulate greenhouse gases. That was settled seven years ago in Massachusetts v. EPA. The arguments heard by the Justices today focused on the EPA’s “tailoring rule” under which the agency adjusts, or tailors, the threshold at which certain pollutants must be regulated.

Under the Clean Air Act limits were established for stationary sources of pollution such as factories and refineries, but the limits for those traditional pollutants like sulfur and nitrous oxides, 100-250 tons per year, are much too low for greenhouse gases which are emitted in much higher volumes.

It is interesting that the usually pro-regulation side supporting the EPA was today arguing for less regulation, saying that applying the limits, without tailoring, would mean regulating every mom & pop factory and overburden an already overburdened bureaucracy. The EPA’s opponents, on the other hand, hope that overturning the rule and expanding regulation to include small sources will cause a backlash against the agency.

Lyle Denniston’s recap of the arguments in Utility Air Regulatory Group v. EPA is here.

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