On Wednesday the Justices heard arguments in the last two scheduled cases of the term. Between now and the end of June they will take the bench only to announce opinions, and possibly for the ceremonial investiture of Justice Gorsuch.
The first argument, Sandoz v. Amgen, an exceedingly complex case on a provision of the Affordable Care Act that covers biosimilar drugs.
The second argument, Maslenjak v. U.S., raised concerns, especially for Chief Justice Roberts, about prosecutorial overreach. The case involves a naturalized citizen who lied on her application and was therefore stripped of her citizenship.
“Some time ago,” Roberts asked the government’s lawyer, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, guess what, you’re not an American citizen after all.”
So much is going on right now I’ll just post the sketches from three of this week’s arguments – Lynch v. Dimaya, Lee v. Tam, and Ziglar v. Abbasi – and leave it at that.
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 . . .
. . . and Lawful Permanent Residents, or DAPA, was before the Supreme Court today.
A very large crowd supporting the president’s immigration policy was gathered in front of the Court’s plaza. Some had been there since Friday hoping to get a seat inside the courtroom for the arguments in United States v. Texas. And the courtroom was in fact packed with spectators full of anticipation, hoping to get an inkling as to which way the Justices may rule.
But at the end of the hour and half of mostly technical argument there was little to glean. You an read about it here.
Back on the bench after their winter break the first case argued before the Justices was on the subject of consular nonreviewability.
There’s a long history of leaving the power to regulate immigration to the legislative and executive branches. The courts have generally declined to review how the State Department decides who comes into the country. But the door to review may have been opened a bit by a 1972 Supreme Court opinion, Kleindienst v. Mandel, where, while upholding the Attorney General’s right to refuse entry to a Belgian Marxist, the Court said the “executive exercises the power . . on the basis of a facially legitimate and bona fide reason”.
Today’s case, Kerry v. Fauzia Din, involves a U.S. citizen who sought an immigration visa for her Afghani husband. The embassy rejected the visa application citing “security and related grounds”, i.e. “terrorist activity”. No further details for the rejection or review of the decision were forthcoming, so Din filed suit in District Court. The lower court dismissed but the Ninth Circuit reversed and found that the government owed her “a facially legitimate reason”.
And no, Justice Sotomayor did not break her arm over winter break. The black cast she is sporting is from a surgical procedure and due to come off later this week. It did not slow her down as she jumped into this morning’s argument with the first question.
Sketches of the Supreme Court announcing its opinion in Arizona v. U.S. The Court upheld in part and struck down in part Arizona’s law, SB 1070, aimed at curtailing illegal immigration. Justice Kennedy wrote for the majority…..
…..and Justice Scalia dissented.
The Tucson Citizen has the story here.
Things just kept getting better for Arizona governor Jan Brewer, in the right foreground above, and the state’s mean-spirited anti-immigration law, SB 1070, especially when the Chief Justice cut off Solicitor General Verrilli before he could even begin his argument saying, “No part of your argument has to do with racial or ethnic profiling, does it?” Which, of course, is the elephant in the room.
When Verrilli later in his argument sought to illustrate the harrasment of legal Latinos by citing population percentages Scalia interjected, “Sounds like racial profiling to me”.
The lawyer for Arizona, Paul Clement, on the other hand faced moderate questions from the Justices as he sought to soften the edges of a harsh law.
Dahlia Lithwick’s story here.
Started out the day at the Supreme Court sketching arguments on an Arizona law that punishes employers of illegal immigrants. Pictured above is Arizona’s Solicitor General Mary O’Grady.
Then on to U.S. District Court in Baltimore for the initial appearance of yet another young man roped in by FBI agents posing as terrorists. Antonio Martinez, aka Muhammad Hussain is said to have attempted to detonate what he thought was a bomb at a military recruitment center in Catonsville, MD.
Would-be bomber story here.
SCOTUSblog story here.