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Two “Faux-nanimous” Supreme Court Decisions

Dahlia Lithwick, writing in Slate magazine, coined the term “faux-nanimous” for the kind of unanimous decisions the Supreme Court delivered today where concurring opinions read more like dissents. Read her article, you’ll like it. And I’ll just go ahead and post my pictures.

UPDATE: Another great article on the “faux-nanimous” opinions, this time from professor Garret Epps for The Atlantic

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

Four Down, Four To Go

The Supreme Court had decisions on four more cases today, though only three opinions because the two cell phone cases were treated as one. In a unanimous decision the Court ruled that a warrant is required to search an individual’s cell phone.

In his opinion for the Court Chief Justice Roberts wrote, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought.”

In another significant decision concerning technology Justice Breyer delivered the opinion in ABC v. Aereo in which the broadcast network’s copyright protection triumphed over Aereo’s innovative program delivery model that sought to bypass royalties.

That leaves four decisions in argued cases – three from January, one from March – to be announced. It is expected that the  Court will meet two more days since the chief justice has not yet announced the final day as is custom.

 

Posted in Opinions, 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: , , , ,

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: , ,

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

 

 

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

SCOTUS In The Cold

Even the turtles holding up the Bronze lamps on the Supreme Court plaza seemed to want to pull in their heads from today’s frigid temperatures.

Inside, the Justices heard arguments in two puzzling cases.The first, Paroline v. U.S., presented the Court with the problem of apportioning restitution to victims of child pornography. In this digital age, where the same image can be downloaded by many participants in the sexual exploitation of a child, to what extent is each viewer responsible for the humiliation and damage suffered?The lawyer for the victim, Utah law professor Paul Cassell, in this case insisted that each perpetrator should be responsible for the entire $3.4 million award. “You’re not claiming - or are you” asked Justice Kagan, “that she’s been victimized to the tune of $3.4 million as a result of this particular defendant’s offense?”

“He contributed to the entire amount,” said Cassell.

The second case, Abramski v. U.S., concerns the so-called “Straw Purchaser” law that is supposed to prevent sales to those not entitled to own firearms, such as convicted felons, by requiring gun dealers to have buyers fill out a form. The form asks, ”Are you the actual transferee/buyer of the firearm listed on this form?”Justice Breyer, pictured above on the left, known for often posing convoluted hypotheticals had an esoteric analysis of the term ‘Straw Purchaser’. “It comes from ‘straw bail’,” he told petitioner’s lawyer, RichardDietz, “where someone else put up the bail and it was called straw because the people who made a career of that used to wear straw in their shoes. Interesting.”

“He made that up,” Justice Scalia interjected.

Lyle Denniston’s analyses of the arguments are here, and here.

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

Kagan’s Roundup Ready and Breyer’s in a Sling

A couple sketches from the Supreme Court yesterday:Justice Kagan's opinion in Monsanto
Justice Kagan annouced the Court’s unanimous opinion supporting Monsanto’s patent rights on its herbicide resistant genetically altered Roundup Ready seed.

NYT’s Adam Liptak has the story here.

It was also Justice Breyer’s first appearance on the bench since breaking his shoulder in a bicycle mishap two weeks ago.Justice Breyer with arm in a sling

Posted in Opinions, Supreme Court Tagged with: , ,

Time for a Tricycle?

Sketch of SCOTUS bench with Justice Breyer absentJust kidding, I’m really very sorry to hear that Justice Breyer had fall from his bicycle over the weekend and broke his shoulder. Twice before he has had serious bicycle mishaps and has always climbed back in the saddle. I hope he continues to ride, and wish him a speedy recovery.

Posted in Supreme Court Tagged with: , ,

Opinions and Arguments

A couple of sketches from today at the Supreme Court :

SC120320_Stevenson

The Court heard arguments in two cases where juveniles were sentenced to life without the possibility of parole. Both prisoners were very ably represented by Bryan Stevenson, pictured above.

The Court also announced opinions in four cases. Pictured below, clockwise from the bottom right, are Justice Sotomayor, Justice Breyer, Justice Kennedy and Justice Ginsburg reading her dissent in Coleman v. Court of Appeals of Maryland. SC120320_justices

 

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

Roberts Court Not So Business Friendly

Until recently the Supreme Court under Chief Justice Roberts has had a reputation of being friendly to business, but in two decisions delivered today the court continues a recent trend of rulings less favorable to business.

SC130322_Sotomayor
In the first opinion, authored by Justice Sotomayor, a unanimous Court said that stockholders could sue the makers of Zicam nasal spray.

SC130322_Breyer
And in a 6-2 opinion ( Justice Kagan took no part ) Justice Breyer wrote that a worker at a plastics factory was protected from retaliatory actions.

Click here for Robert Barnes’ WaPo article.

SC130322_Schnapper

I stuck around to hear/watch arguments in a case,  Borough of Duryea v. Guarnieri, concerning the First Amendment’s petition clause.  Some of the historical precedent cited reached back as far as Robin Hood’s Sherwood Forest.   Respondent’s lawyer, Eric Schnapper :  “If you had a problem in England, if the undersheriff took your cow, you could go to the sheriff, but historically, that wasn’t called a petition.  If you went to the king, that was a petition,”

SC130322_boring
Now that’s entertainment!

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