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The Come To Jesus Court

I used to have a naive belief that the courts were there to protect the rights of individuals and minorities but a couple of recent Supreme Court decisions show how mistaken I was. Two weeks ago in Schuette, and yesterday in Town of Greece, Justice Kennedy has come to the defense of the poor put-upon, oppressed by a hypersensitive minority, majority.

In a deeply divided plurality opinion the Court endorsed prayer at town-board meetings even if they almost exclusively invoked the name of Jesus – after all the town is majority Christian – as long as they don’t ” . . . threaten damnation, or preach conversion”.

All you others, stop whining.

Garrett Epps has it very well here.

Posted in Opinions, Supreme Court Tagged with: , , , ,

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.

Posted in Arguments, Supreme Court Tagged with: ,

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”.

 

Posted in Arguments, Supreme Court Tagged with: , , , ,

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.”

 

 

 

Posted in Arguments, Supreme Court Tagged with: , , , ,

Schuette v. Coalition to Defend Affirmative Action

On my way to the Supreme Court yesterday morning I read a Tweet that said it was unlikely the Court would announce any major opinion today since two big cases were scheduled for argument. Well, so much for the Twitter tea leaves.

Justice Kennedy announced the opinion in Schuette v.Coalition to Defend Affirmative Action saying, ” this case is not about . . . race-conscious admissions policies.” The 6-2 opinion approves a Michigan ban on the use of racial preferences in state university admissions.

In a fierce and lengthy dissent from the bench Justice Sotomayor castigated the majority opinion that “fundamentally misunderstands the nature of the injustice.”

Great quote from Garrett Epps in The Atlantic: Does anybody else think it could be a problem to put the question of minority rights to a majority vote in state initiatives?

I wonder what Cecilia Marshall, widow of the late Justice Thurgood Marshall, and her son, Thurgood “Goodie” Marshall Jr., thought of the Court’s decision?

 

Posted in Opinions, Supreme Court Tagged with: , , ,

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.

Posted in Arguments, Supreme Court Tagged with: , , ,

Professor Abraham and the Justices

Marcia Coyle had the idea for this drawing of UVa professor Henry J. Abraham and the eight chief justices who served during his lifetime, so far (Abraham is 92).

Posted in History, Supreme Court Tagged with: , ,

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.”

Posted in Arguments, Supreme Court Tagged with: , ,

Goodbye Campaign Finance Reform

In an opinion that came as little surprise to anyone the Supreme Court today in McCutcheon v. FEC did away with aggregate limits on individual campaign contributions. Although the cap remains on individual contributions to a candidate, wealthy contributors are now free to give to as many candidates or political organizations as they please.

Dissenting, Justice Breyer responded to Chief Justice Roberts’ assertion that the possibility of circumventing the remaining base contribution limits are purely hypothetical and remote. “We react to (that claim) rather like Oscar Wilde reacted to Dickens’ depiction of the death of Little Nell. ‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing.’”

Posted in Opinions, Supreme Court Tagged with: , ,

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.

bSC140325_Sotomayor

bSC140325_Kagan

Lyle Denniston’s argument recap here.

NYT story here.

WaPo story here.

And a must-read from Dahlia Lithwick here.

 

 

 

Posted in Arguments, Supreme Court Tagged with: , , , , ,
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