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
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.
My contribution to 2776: The Album. You may have seen the liner notes in last week’s New Yorker or heard Neko Case’s track, “These Aren’t The Droids”.
The Court announced opinions in three more cases today, two of which are sketched below. I think that leaves eight, or nine if you count the two cell-phone search cases separately. More opinions on Wednesday and Thursday, and the possibility that the final opinion(s) won’t come until next Monday.
Justice Scalia announced a knobbly opinion in Utility Air v. EPA, from which both sides have claimed a win. And the Chief Justice, below, had the opinion in Halliburton v. Erica P. John Fund on certification of a class action in securities fraud.
SCOTUSblog’s videographer, Fabrizio di Piazza, took this beatific photo of me this morning working on the sketch you see at the top of the post.
Thanks Fabri !!!
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.
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.”
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?
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.
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).
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.”