Author: Anna Christensen

Below, Natasha Fedder recaps Tuesday's oral argument in Johnson v. United States. Natasha is a third-year law student at the University of Pennsylvania and a former Akin Gump summer associate. Check the Johnson v. United States (08-6925) for additional updates. At oral argument on Tuesday, the Court grappled with the meaning of “physical force” under the ACCA.  Arguing for petitioner Curtis Johnson, Assistant Federal Public Defender Lisa Call emphasized that a conviction for battery involving only “the slightest contact” does not constitute sufficient “physical force” to satisfy the ACCA elements of a violent felony.  Ms. Call assured the Court that sentencing courts would be able to draw a qualitative line to establish the amount of force necessary to fall within the ACCA, suggesting that such physical force would be a violent, aggressive type likely to cause injury.  However, the Justices expressed concern that such an interpretation would exclude crimes committed without using force from the purview of the statute even though Congress had surely intended some of these crimes – such as kidnapping and domestic violence – to be covered by the ACCA.

Below, Diana Gillis recaps Monday's oral argument in Maryland v. Shatzer.  Diana is a law student at Georgetown and a former Akin Gump summer associate.  Check the Maryland v. Shatzer (08-680) SCOTUSwiki page for additional updates. In Maryland v. Shatzer, the first case of the October 2009 Term, the Court heard oral arguments regarding the scope of the Edwards prohibition on interrogation once a right to counsel has been asserted.  Maryland Attorney General Douglas Gansler urged the Court to adopt a bright-line rule terminating the Edwards prohibition following a break in custody from custodial interrogation, which would include Mr. Shatzer’s return to the prison population where he resided while serving time for another crime.  Gansler stressed that multiple federal circuits and states have already adopted this rule, but Justices Ginsburg and Sotomayor pointed out that returning to prison does not provide the same freedoms as returning home following interrogation.

Yesterday, the Court heard arguments in United States v. Stevens (08-769), and generated a flurry of press coverage in the process.  At the Washington Post, Robert Barnes reports on the oral argument, as does Adam Liptak at the New York Times, detailing the Justices’ strenuous questioning of both sides; USA Today posits that the Court appeared “poised” to strike down the law, which bans the sale of depictions of animal cruelty.  The L.A. Times, the Wall Street Journal, and NPR also have coverage, and at the National Law Journal, Tony Mauro highlights Justice Kennedy’s point that “the Court has never found a law restricting speech to be constitutionally acceptable just because prosecutors have so far used restraint.”  At Slate, Dahlia Lithwick also offers a detailed play-by-play of the questioning. Before the argument, NPR’s Nina Totenberg offered an analysis of the various issues at play in the case.  Brian Maloney also previewed the argument at ACSblog, detailing the potential deliberate and unintended effects of an opinion upholding the law.  ACSblog also has an essay by Humane Society president Wayne Pacelle, who argues that a decision in favor of the petitioners will significantly discourage animal cruelty while leaving in place exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Below, JP Howard previews Union Pacific Railroad Company v. Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment, Central Region, one of three cases to be heard by the Supreme Court on Wednesday, October 7. Check the Union Pacific (08-604) SCOTUSwiki page for additional updates. UPDATED 10:37 a.m. Argument Preview The Railway Labor Act (“RLA”) creates a set of procedures to settle labor disputes between railroads and unions that require an internal grievance process culminating with an “on-property conference.”  If the parties are dissatisfied with the outcome of the “on-property” proceedings, which are defined in their collective bargaining agreement, they may initiate an arbitration proceeding before the National Railroad Adjustment Board (“NRAB”).  NRAB decisions are binding and have explicit statutory judicial review only when (1) the Board has failed to meet the requirements of the RLA; (2) the Board has reached outside of its jurisdiction; and (3) the Board or one of its members has engaged in fraud or corruption. In No. 08-604, Union Pacific Railroad v. Brotherhood of Locomotive Engineers and Trainmen, the Court will consider two questions: Whether the RLA authorizes courts to set aside final arbitration awards for alleged violations of due process by the NRAB, and whether the Board can adopt a new, retroactive interpretation of the standards governing its arbitration proceedings.

Below, Akin Gump's Scott Street previews Bloate v. United States, one of the three cases to be heard by the Supreme Court on Tuesday, October 6.  Check the Bloate v. United States (08-728) SCOTUSwiki page for additional updates. On Tuesday, October 6, the Supreme Court will hear oral argument in Bloate v. United States.  In Bloate, the Court will consider whether a provision of the Speedy Trial Act that automatically excludes periods of delay resulting from “other proceedings concerning the defendant” governs time granted to a defendant to prepare a pretrial motion.

This morning, the Court issued orders denying certiorari in a number of cases and inviting the government’s views in four.  A round-up of the coverage on these orders is below. NOTE: A correction has been made to the entry on St. James Parish v. Episcopal Diocese of Los Angeles. The Court denied cert. in the following cases, among others: Barr v. LaFon: The Court refused to hear an appeal by a group of students challenging a school policy barring any depiction of the Confederate flag.  The students had argued that the school’s refusal to allow them to wear Confederate flag tee-shirts frustrated their freedom of expression.  The Christian Science Monitor discusses the case. Choose Life Illinois, Inc. v. White: The LA Times, the Chicago Tribune, the Boston Herald, UPI, and the AP all have pieces on the Court’s decision not to take up a free speech claim from a pro-life group.  The group, Choose Life Illinois, had argued in its petition that the state’s refusal to issue a “Choose Life” specialty license plate amounted to discrimination.

Yesterday, the Court held its annual "long conference," in which the Justices discussed which of last summer's cert. petitions it will hear this term.  Kent Scheidegger of Crime and Consequences has previewed the conference, highlighting a number of SCOTUSblog’s “Petitions to Watch.” One of the petitions considered on Tuesday addresses the issue of whether federal judges have the power to release detainees into the United States.  That issue is examined in a Washington Post editorial, which argues that the Court should take up the case, Kiyemba v. Obama, so that it can make a definitive determination on the prospects of freedom for some 17 Uighur detainees.  The Bush Administration ordered the Uighurs freed years ago, but they cannot be returned to China, where they face the threat of torture, and as of now, it is unclear whether they can be released into the U.S.  A decision to take the case, the editorial asserts, would “determine how much power federal judges have to deliver real and meaningful freedom.” Another article in the Post criticizes President Obama’s decision not to go to Congress to establish standards on these issues “delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court,” suggesting that the Court’s potential ruling in Kiyemba or a similar case will be a deciding factor in the development of detention policy.

Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s hospitalization at the Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement  is available here.

In the wake of Ohio’s botched execution of Romell Broom last week, the debate continues over the constitutionality of capital punishment.  At Newsweek, Krista Gesaman examines the possibility that the circumstances surrounding the execution attempt constitute cruel and unusual punishment under the eighth amendment.  Gesaman points out that only one Supreme Court case, in 1947, addressed the issue of botched executions; in that case, Louisiana ex rel. Francis v. Resweber, the Court ultimately held that a second execution attempt was constitutional.  Romell Broom’s attorney has nonetheless begun litigating constitutional claims on his client’s behalf, arguing in the Ohio supreme court that the incident “was a form of torture that exposed Broom to the prospect of a slow, lingering death, not the quick and painless one he was promised and to which he is constitutionally entitled if he is going to be executed by the State.”

Today Howe & Russell filed the petitioner's brief in Jerman v. Carlisle, No. 08-1200.  The petitioner's brief is here.  The question in the case is whether the so-called "bona fide error" defense of the Fair Debt Collection Practices Act applies to mistakes of law.  Howe...