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Sketches of Supreme Court arguments

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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MS Drug Patent Argument

Usually trial courts are the exclusive finders of facts and appellate courts are limited to questions of law, but apparently that’s not necessarily the case when it comes to patent law. In a dispute between Teva Pharmaceuticals, which holds the patent on the very profitable multiple sclerosis drug Copaxone, and companies that want to begin marketing a generic version the trial court sided with Teva. The U.S. Court of Appeals for the Federal Circuit, which reviews patent cases, however, looks at all elements of a patent claim as legal issues, including the factual conclusions of the trial court and reversed.

Even though Teva’s patent expires in September of next year the amount of money at stake is huge – in the billions. Also at stake is a shift of power from the Federal Circuit.

The case is Teva Pharmaceuticals v. Sandoz

Here are my sketches and a link to Lyle’s SCOTUSblog analysis of the argument.

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I Am Not An Anti-Dentite . . .

. . . nor do I have anything against teeth whitening. I suppose it is an important case, North Carolina Board of Dental Examiners v. FTCabout whether state licensing boards made up of private professionals may violate anti-trust laws, and the argument was lively, but I’ll just post my two sketches and a link to Adam Liptak’s article and call it a night.

Liptak’s NYT story here.

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The Long and Short of Prison Beards

Arkansas prisons limit the length of inmates’ beards to a quarter inch. One of those inmates, a Muslim whose faith requires a full beard, tried to compromise by only growing his beard to a half inch but that was still too long for the warden. Contraband might be concealed in the half-inch beard, or the inmate could change his appearance to evade detection by shaving the beard.

None of those arguments were even considered plausible by the justices when the case, Holt v. Hobbs, was argued today. Justice Alito suggested using a comb on the beard “to see if a SIM card – or a revolver – falls out.” And Scalia asked why not take a photo of the inmate before he grows the beard?

“You’re really just making your case too easy”, the chief justice told petitioner’s lawyer, Douglas Laycock pictured above.

Arkansas Deputy Attorney General David A. Curran didn’t have much to show why the courts should defer to the bureau of prisons.

All bets are that the Court votes 9-0; not even close to a close shave.



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In Other Supreme Court News . . .

While the big news today was the denial of all same-sex marriage ban petitions the Court also heard its first argument of the term, Heien v. North Carolina, a Fourth Amendment “reasonable” search case from the home town of Andy Griffith: Mt Airy, North Carolina.

In April, 2009, Sheriff’s Deputy Matt Darisse – pictured above with beard (and dislexically id’d) as he waited in line for a seat in the courtroom this morning – was working “criminal interdiction” on Highway 77 when he pulled over a vehicle for having a stop light out. After asking permission to search the vehicle officers found a baggie of cocaine and the owner of the car, Nicholas Heien, was arrested along with the driver.

It turns out, however, that North Carolina law only requires “a stop lamp on the rear of the vehicle” and since Heien’s car still had one good light the stop was illegal, and the cocaine “fruit of the poisonous tree.”

The question is whether the search was reasonable. After all, most of us would expect two working stop lights to be the law, and were surprised to learn otherwise (at least in NC). On the other hand ignorance of the law is no excuse for most defendants, so why should a police officer be allowed a mistake when enforcing the laws?

Not much has yet been published on today’s argument, and I have to confess that I get most of my information after the fact from what I read. I find it very difficult to draw and at the same time follow the thread of the argument; must be different parts of the brain – plus my wife says I’m hard-of-hearing. I did manage to pick up that Justice Scalia was never satisfied with the answer he got form petitioner’s lawyer, Jeffrey Fisher.

Above is my best drawing of the day, I think. Great subject.

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Fourth Amendment Limits on Cell Phone Searches?

The Supreme Court today heard arguments in two cases concerning warrantless searches of cell phones. The old rules about searching belongings and the immediate area in the course of an arrest need to be reassessed now that most people carry a great deal of information around on their smartphones.

Lyle Denniston’s argument recap is here. The rest of my sketches are posted below.

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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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