Monday round-up
The death of Justice Antonin Scalia and the battle over nominating his successor continue to dominate coverage of and commentary on the Court.
February 2016 Archive
Showing 1–50 of 99 items published in February 2016, most recent first.
Two big property rights issues — for the future
The Supreme Court on Monday chose to pass up two major disputes on property rights, but lawyers were urged to bring up those issues again in future cases — cases without procedural flaws.
Argument preview: What did Congress mean by “actual fraud” in Bankruptcy Code?
Chrysalis Manufacturing Corp. was a Texas-based company that made circuit boards. Over a four-year period between 2003 and 2007, Chrysalis bought electric device components from Husky International Electronics, a Colorado distributor.
Argument analysis: Seeking a recusal rule that the Justices can live with
The oral argument in Williams v. Pennsylvania illustrated the difficulty of fashioning recusal rules that are both fair and administrable.
Argument transcripts
The transcript in Voisine v. United States is here; the transcript in Williams v. Pennsylvania is here.
Tribute: The incomparable Antonin Scalia
Kristin Linsley Myles is a litigation partner at Munger Tolles & Olson LLP. She served as a law clerk to Justice Scalia for October Term 1989. When Justice Scalia joined the Court in 1986, I was in law school.
This week at the Court
The Court issued additional orders from its February 26 Conference on Monday. There were no new grants, and there were three requests for the views of the Solicitor General. On Tuesday the Court released its opinions in Lockhart v. United States and Gobeille v. Liberty Mutual Insurance Company.
New plea to protect Louisiana abortion clinics (UPDATED)
UPDATE Tuesday 10:34 a.m.
States seek to block mercury pollution rule
Twenty states have asked the Supreme Court to order federal officials to stop enforcing a four-year-old rule — temporarily nullified by the Court last June — that requires electricity-generating power plants to install technology to curb pollution of the air with mercury and other harmful materials.
Tribute: Justice Scalia and the next generation of constitutional custodians
Kevin C. Walsh is a Professor of Law at the University of Richmond School of Law. He served as a law clerk to Justice Scalia for the 2003-2004 Term.
The changing Court brings an end to a major case
In the first direct response by lawyers and clients to the change in the Supreme Court, Dow Chemical Co. said on Friday it had settled a billion-dollar class-action case it has pending before the Justices, rather than risk a loss following the death of Justice Antonin Scalia.
This week’s oral argument audio available on Oyez
Oral argument audio and transcripts are available on Oyez. Listen to the first week of arguments without Justice Antonin Scalia in: Kingdomware Technologies, Inc. v. United States Utah v. Strieff Taylor v. United States Halo Electronics v. Pulse Electronics, Inc. Hughes v. Talen Energy Marketing, LLC
Friday round-up
Today the Justices met for their first Conference since January 22.
Thursday round-up
Yesterday the Justices heard oral arguments in two consolidated energy-regulation cases, Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing. Lyle Denniston covered the oral argument for this blog.
SCOTUS for law students: Questions about the Court after Justice Scalia’s death
Justice Antonin Scalia’s death left many questions, large and small. Some of those questions focus on the operation of the Supreme Court. This column will try to answer a few. Question: What happens to Scalia’s current law clerks?
Tribute: He did what he was born to do
Christopher Landau is a partner at Kirkland & Ellis LLP and head of the firm’s appellate litigation practice. He served as a law clerk to Justice Antonin Scalia for the 1990-1991 Term. “Gi-dow-da-hea!” Before clerking for Justice Scalia, I was not familiar with this particular expression.
Added circuit duty for Thomas
Justice Clarence Thomas will be Circuit Justice for two of the geographic groupings of lower federal courts, adding the assignment for the Fifth Circuit formerly held by the late Justice Antonin Scalia, the Supreme Court said Thursday. Thomas retains his assignment for the Eleventh Circuit.
Petitions to watch | Conference of February 26
In its Conference of February 26, 2016, the Court will consider petitions involving issues such as whether a stun gun is an “arm” within the meaning of the Second Amendment; whether the California Unclaimed Property Law violates the Due Process Clause of the Fourteenth Amendment because it deprives
Argument analysis: Justices unsettled on standard for enhanced damages in patent cases
Moving through the first week any sitting Justice has heard oral argument without Justice Antonin Scalia, the bench was notably unsettled at yesterday morning’s argument in the first patent cases of the October 2015 Term, Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer, Inc. On first glance, nothing about the cases seems particularly complex.
Argument analysis: Sometimes argument is not much help
Oral argument in Taylor v. United States today was unusually short and, it seems from the transcript alone, not particularly helpful.
A Responsibility I Take Seriously
The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead. It’s also one of the most important decisions that a President will make.
Argument analysis: Will the new FERC case turn out to be easy?
Analysis With two Justices openly confessing that they really do not understand how prices are set in the energy industry, and with one of them asking for help in writing an opinion to decide a complex new case on national vs. state authority over that industry, the Supreme Court on Wednesday actually found itself confronting what could be a quite easy way to make up its mind.
Wednesday round-up
Today the Justices heard oral arguments in two consolidated energy-regulation cases, Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing.
Argument preview: New look at abortion after nine years (UPDATED)
Analysis UPDATED 5:44 p.m. In a matter of days, the Court will get a test of its current views on one of the restrictions at issue in the Texas abortion case previewed in this post: the requirement that doctors at abortion clinics have patient-admitting privileges at a hospital within thirty miles of the clinic.
Argument transcript
The transcript in the consolidated cases Hughes v. Talen Energy Marketing and CPV Maryland v. Talen Energy Marketing is here.
Argument preview: When must a prosecutor-turned-judge recuse from a capital case?
Can a prosecutor first approve a capital-punishment charge and then, after becoming a judge, adjudicate the defendant’s claim that the prosecutor’s own office had engaged in misconduct? That question is at the core of Williams v. Pennsylvania, which the Court will hear next week.
Argument preview: Another arcane case in which Justice Scalia will be missed
Whether a prior conviction for a “reckless” domestic assault qualifies as a federal “misdemeanor crime of domestic violence” is, for defendants in the thirty-four states that have reckless assault statutes, not an unimportant question.
Argument analysis: No clear winner in VA contracting case
After a warm and lengthy tribute by Chief Justice John Roberts to the late Justice Antonin Scalia, the Court got back to work this morning hearing oral arguments. First up was Kingdomware Technologies v. United States, a dispute over the scope of a 2006 law aimed to benefit veterans.
Argument preview: When a sex offender moves out of the country, does he have to tell anyone?
When Lester Ray Nichols, a federally convicted sex offender, left Kansas in 2012 to go live in the Philippines, one might have thought the United States government would be happy to see the back of him. Not so.
Argument transcripts
The transcript in Taylor v. United States is here; the transcript in the consolidated cases Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc. is here.
A move to block any Obama nominee to the Court
All members of the Republican majority of the Senate Judiciary Committee vowed on Tuesday to take no action, including a refusal to hold any hearings, on any Supreme Court nominee proposed by President Obama.
Tuesday round-up
Today the Justices heard oral arguments in two cases. Rory Little previewed the Hobbs Act case Taylor v. United States for this blog. Ronald Mann previewed the patent-damages cases Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer, Inc. for this blog, with other coverage coming from Marilyn Odendahl of The Indiana Lawyer.
Tribute: A mentor and a mensch – remembering Justice Scalia
We will be hosting a series of tributes to the late Justice Antonin Scalia by some of his former clerks. Our first is from Danielle Sassoon, who served as a law clerk to Justice Scalia for the 2012-2013 Term.
Court, without Scalia, reopens (UPDATED)
UPDATED 1:36 p.m. Here is the text of the Chief Justice’s remarks at the opening of the Court’s public session Monday. —————- With a brief tribute from Chief Justice John G. Roberts, Jr., noting that the Supreme Court will miss the late Justice Antonin Scalia “beyond measure,” the Court resumed its normal business Monday morning.
Monday round-up
On Friday the Supreme Court denied a request by North Carolina to delay implementation of a new districting plan. Lyle Denniston covered the order for this blog, with commentary coming from Rick Hasen in two posts (here and here) at his Election Law Blog.
Argument transcripts
The transcript in Kingdomware Technologies, Inc. v. United States is here; the transcript in Utah v. Strieff is here.
A “view” from the Courtroom: The Justices return to a black and gray bench
The Supreme Court returned to the bench on Monday for the first time since the death of Justice Antonin Scalia. “The memorial drapery on the Bench and chair beside me signifies mourning for a Justice who has died in active service on the Court,” Chief Justice John G. Roberts, Jr., said as he and
Argument analysis: Court closely divided on the exclusionary rule
Only six Justices spoke during this morning’s oral argument in Utah v. Strieff. The six voices suggested that the Justices are deeply divided on the scope of the exclusionary rule, perhaps dividing four to four in Justice Antonin Scalia’s absence.
This week at the Court
The Court heard oral arguments on Monday, Tuesday, and Wednesday. The calendar for the February sitting is available here. On Friday the Justices will meet for their February 26 Conference; our list of “petitions to watch” for that Conference is available here.
North Carolina redistricting delay denied
Without an explanation, the Supreme Court on Friday night left intact a lower court decision that had forced the North Carolina legislature to draw up a new election district map for congressional seats, to cure “racial gerrymandering” in two of its districts.
“A simple parish funeral Mass”
The late Justice Antonin Scalia was given a “simple parish funeral Mass,” as two priests described his services Saturday before some 3,300 people – including a sitting and former U.S. vice president, active and retired members of the Supreme Court, and other dignitaries at the largest Roman Catholic church in the nation.
SCOTUS Map: Remembering Justice Scalia and January – February 2016
The late Justice Antonin Scalia is at the forefront of everyone’s minds this week. While his jurisprudence and his legacy have been ably (and extensively) analyzed elsewhere, we wanted to take a moment to highlight Justice Scalia’s exceptionally energetic speaking itinerary.
Justice Scalia’s casket enters Supreme Court
Moments ago, eight pallbearers carrying the flag-draped casket of the late Justice Antonin Scalia passed through the iconic bronze doors of the main entrance to the Supreme Court.
Solemnity and remembrance in the Great Hall
Blog colleague Mark Walsh contributed to this report. —————- With his sixth child, the Rev. Paul Scalia, reciting a brief litany of prayer and Bible passages, the late Justice Antonin Scalia on Friday morning lay in a flag-draped coffin, the opening of the last ceremonial tributes before he is buried Saturday afternoon.
Friday round-up
The death of Justice Antonin Scalia continues to generate coverage and commentary. At Bloomberg BNA, Rebecca Wilhelm assesses Scalia’s influence on environmental law through his standing and administrative law jurisprudence.
Argument preview: Dispute over scope of veterans’ set-asides
Kingdomware Technologies is a Maryland-based company that provides web, software, and technology services. It is owned by Tim Barton, a U.S. Army veteran who served in 1991’s Operation Desert Storm.
The president’s gestures of respect
For two brief, but historic, moments, President Barack Obama and Michelle Obama brought the nation’s tribute to the late Justice Antonin Scalia in the Supreme Court’s Great Hall.
Thursday round-up
For The National Law Journal (subscription or registration required), Tony Mauro reports that Justice Antonin Scalia’s “failure to specify a home for his official papers before his death” leaves “unresolved the status of what could be a treasure trove of behind-the-scenes information about his
A “view” from the Courtroom: “I’m Scalia” and other quips
Justice Antonin Scalia was known for his sharp-elbowed writing, which is preserved for posterity in his opinions. But his many memorable quips from the bench, usually during oral argument, are also an important part of his legacy.
Petitions to watch | Conference of February 19 (Updated)
(Update: Because of the ceremony at the Court in honor of the late Justice Antonin Scalia on Friday, the Justices will not hold their February 19 Conference that day.)
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