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 . . .
It’s not getting much attention but there’s a pretty important antitrust trial underway in the courtroom of U.S. District Judge Amy Berman Jackson. The Justice Department is seeking to block the merger, actually more of a takeover, between the insurance companies Anthem and Cigna. Each side, of course, argues opposite results for the health care consumer.
Anthem’s CEO, Joseph R. Swedish testified on the first two days of trial which began last Monday and is expected to end before the new year. Another antitrust lawsuit, this time between Aetna and Humana, begins December 5.
A news story about the trial can be found here.
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.
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.
“You have someone here who presents himself as two different people,” said Magistrate Judge A. David Copperthite at a detention hearing in Baltimore for the purloiner of tons of NSA files.
The government painted a picture of a serial lawbreaker who knowingly removed boxes of documents and terabytes of electronic files from the NSA, and kept an arsenal of weapons in his home.
Martin’s lawyer, Federal Public Defender James Wyda, by contrast said his client is a hoarder with a drinking problem. “The mental health factor is the only explanation for this that makes sense.”
Harold T. Martin III has so far only been charged with theft and retention of classified material. Although the law only allows detention based on flight risk for such minor offenses the government still argued about the danger he posed to national security. Assistant U.S. Attorney Zachary A. Myers told the judge,“There’s no guarantee that he’s not storing other information somewhere else that he has not told us about.”
Additional charges under the Espionage Act are expected.
NYT story here.
Retired USMC General James E. Cartwright, once known as “Obama’s favorite general”, appeared on short notice in a DC courtroom Monday to plead guilty to lying to the FBI. “It was wrong for me to mislead the F.B.I. on Nov. 2, 2012, and I accept full responsibility for this,” General Cartwright told U.S. District judge J. Richard Leon. “I knew I was not the source of the story and I didn’t want to be blamed for the leak. My only goal in talking to the reporters was to protect American interests and lives; I love my country and continue to this day to do everything I can to defend it.”
An investigation into leaks about a joint US – Israeli “Operation Olympic Games” effort to sabotage Iran’s nuclear program through cyberattacks led the FBI to question General Cartwright. A book by New York Times reporter David Sanger, ‘Confront and Conceal’, brought public attention to the covert program and led to congressional investigation.
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 !
A little late in posting this but here are sketches from last week’s sentencing hearing for Romanian email hacker Marcel Lehel Lazar, aka “Guccifer”.
Lazar displayed a fairly cocky attitude as judge James Cacheris sentenced him to 52 months for hacking into the email accounts of prominent Americans including former secretary of state Colin Powell and Hillary Clinton advisor Sidney Blumenthal. It was Lazar who first revealed that Clinton used a private email account while secretary of state, though the government denies that he ever gained hacked her account.
More about the sentencing here.