Breaking News

Author: Lisa McElroy

By on May 20, 2010 at 1:30 pm
You know the active part of the Term is coming to an end when you get not one, not two, but three really interesting and controversial and important opinions in one day.  Monday was just such a day – we’re about six weeks from the Court’s traditional summer recess – so there’s tons to talk about this week in Plain English. Let’s start with Graham v. Florida, the juvenile life-without-parole case.   The criminal defense bar has been watching this one closely – after all, many criminal defendants are children, and many of these are tried in adult courts and sent to adult prisons.  In Graham, the Court held that juveniles, who aren’t neurologically and psychologically as mature as adults, can’t be sentenced to life in prison without the possibility of ever being eligible for parole.  The case follows from Roper v. Simmons, a case from a few years back in which the Court held that juveniles cannot receive the death penalty. First, it’s important to understand that this life-without-parole case only applies to kids who haven’t killed anyone; whether the Court’s ruling yesterday will apply to juvenile killers is still an open issue, perhaps to be litigated down the road.  And it’s also critical to know (as Lyle explained here) that Graham is not a get-out-of-jail-free card:  kids serving life sentences without parole (about 130 in all) will still have to show that they are “fit to rejoin society.”

By on May 17, 2010 at 8:53 am
If you’re a Court watcher, you’ve undoubtedly been hooked this week reading all about President Obama’s nomination of Solicitor General Elena Kagan to be an Associate Justice on the Court.  As I mentioned a few weeks ago, the water cooler talk will only get more involved and more interesting as the confirmation process goes on. So let’s discuss that confirmation process.  After all, you may have heard that Kagan herself once criticized the process of questioning by senators as fairly worthless, at least in its current formulation.    And if you’ve been watching the news, you’ve seen lots of statements from lots of people either supporting or decrying the nomination.  So what is that all about?  Well, Article II of the Constitution provides that the President will nominate Supreme Court Justices subject to the “advice and consent” of the Senate.  The President makes the nomination, which requires a majority vote by the Senate to confirm.  Under the Senate’s rules, the nomination could be subject to a filibuster, which would require 60 votes to break.

By on May 7, 2010 at 6:18 pm
If it seems like the Court has been pretty quiet this week, you’re not imagining things. Court watchers know that May is a peculiar time of year at the Court:  scheduled oral arguments are over, but the Justices are hard at work in their chambers writing the opinions that will decide the cases of the Term.  Because the Court generally plans to issues opinions by the end of June for all of the cases that were argued (this Term, that number is seventy-seven), that means that the next six weeks may seem slow to those of us outside of the Court.  Inside the now-closed front doors (more on that in a minute), there’s undoubtedly a frenzy going on, with draft opinions circulating from chambers to chambers and law clerks (more on them soon as well) drinking an awful lot of coffee – they still have forty-two opinions to complete and announce (not including concurrences and dissents).

By on Apr 23, 2010 at 6:19 am
What a week it has been at the Supreme Court!  There has been intense speculation over who will replace Justice Stevens, as well as the ninetieth birthday of this young-at-heart Justice.  On the legal landscape, it’s been a notable week for the First Amendment.  We finally had a decision in what most consider to be the most important First Amendment case of the Term, and the Court heard oral argument in another. Let’s start with the oral argument in Christian Legal Society v. Martinez, a case that’s supposed to be about whether a public university must recognize a student group that does not comply with anti-discrimination policies.  At question in this case specifically was whether the University of California’s Hastings College of Law could deny school funding and other benefits to a religious student organization because the group required its officers and voting members to agree with its core religious viewpoints. Sounds like a fairly clear, if difficult question.  But to Justice Kennedy and several of the other Justices, the case had become decidedly fuzzier over its lifetime, resulting in Kennedy’s commenting that he didn’t really know just what the case was about.  Certainly, it’s about the need for diversity and non-discrimination policies balanced against the sincerely held religious beliefs of some student groups. But the case is also about, more specifically, discrimination by a religious student group against people who have sex outside of marriage, and even more specifically, people who are homosexual.  Does such a group have a right to do so?  Why or why not?  Does the First Amendment protect the group members’ right of association to that extent?

By on Apr 18, 2010 at 11:26 am
What a week!  While many thought the past few days would be quiet ones on the SCOTUS front – we weren’t expecting opinions, the orders were few, and there were no arguments – things heated up quickly with the much-anticipated announcement by Justice Stevens that he would retire over the summer.  Those of us reading the SCOTUS tea leaves have predicted for several months now that Justice Stevens was likely to retire, in part because he had not hired law clerks for next Term, in part because some public statements he had made seemed to support that prediction. But while SCOTUS watchers knew this was probably coming (and, look, the man is turning ninety this week – the world knew it was coming), we were still sad to see Justice Stevens go.  The Justice with the gentle manner and sparkling eyes has served almost as long as any other Justice in history, and he has been a part of countless landmark cases. 

By on Apr 8, 2010 at 1:45 pm
Because there are no arguments or opinions at the Court this week, we thought that it might be a good day to catch up on last week’s oral arguments in Plain English. The arguments were many (six) and varied (everything from sentencing law to double jeopardy to securities fraud).  In Barber v. Thomas, the Court engaged in a tough process of statutory interpretation.   Put simply, a major part of the Court’s job is to read federal statutes and figure out what the words in them mean, how they work together, and how they should apply.  Very often, different federal courts of appeals have interpreted the statutory language differently, and it’s up to the Court to establish a consistent interpretation of the law. In Barber, the language at issue is the phrase “term of imprisonment,” under a federal law that awards federal prisoners credit – in the form of days off of their sentences – for good behavior.  While the term might seem simple on its face, in operation, it is anything but.  At argument, the Justices’ job was to figure out how different interpretations of the phrase would play out in real-life sentences.  How did they attempt to do that?  Through a common questioning technique called “extension of the hypothetical.”

By on Apr 2, 2010 at 10:14 am
As many of you undoubtedly know, spring’s an exciting time for SCOTUS watchers, and not just because the cherry blossoms are abloom in Washington, DC.  For Chief Justice Roberts, a self-professed basketball fan, perhaps it’s about March Madness, but for those of us more interested in the Court than in the court, it’s because we’re starting to reach that time of year when opinions come down fast and furious.  It’s been six months since the First Monday in October (which Congress has designated as the first day of the new SCOTUS Term), so the Court has had a chance to consider carefully a number of important cases that were argued early in the Term.  From now until the end of June (the traditionally self-imposed end of the active SCOTUS Term, although each Term officially runs until the beginning of the next), we’re bound to see lots of law being interpreted and made. This week was certainly typical for early spring:  The Court handed down opinions in five cases, several of them in fairly major cases heard several months ago.  There’s lots to discuss in plain English.

By on Mar 27, 2010 at 3:55 pm
So let’s catch up on this week’s happenings over at the Court.  Argument weeks are always busy, but this one was a bit less so, with only one opinion and five oral arguments instead of the more typical six. Still, with chatter about the new health care bill someday making its way to the Supreme Court, an execution stayed, and Asian carp still threatening Lake Michigan, there was plenty going on to keep things interesting. Probably most of note this week were the Court’s orders, as noted by Lyle on Monday.  An order of the Court can be many things:  it can grant or deny cert., it can stay or deny a stay in an execution, or it can tell attorneys to do something (like file an additional brief).  This week, the Court did not grant cert. in at least two cases in which some thought it might do so:  it declined to review an appeals court ruling that took away the power of federal judges to stop transfers of Guantanamo detainees, and it also denied cert. in a case involving religious music in schools.

By on Mar 10, 2010 at 3:30 pm
Even though we’re only halfway through the week, it has already been an interesting week at the Court. On Monday, the Court handed down two opinions in cases involving the Speedy Trial Act and attorney advice in bankruptcy proceedings. Let’s start with Bloate v. U.S. You probably know that a criminal defendant has a right to a speedy trial, both under the Sixth Amendment (a provision of the United States Constitution) and under the Speedy Trial Act (a federal law enacted by Congress).  In Bloate, the Court had to decide just how “speedy” was speedy enough under federal law.  As Scott Street explained in his post on Tuesday, the Court invoked its justice sword in holding that time spent preparing pretrial motions can only be excluded from the 70 days allowed to bring a criminal defendant to trial if excluding the days from the day count serves the ends of justice. Here’s what’s ordinary about Bloate:  The Court is called upon almost daily to interpret an act of Congress, or a federal law.  Many statutes contain ambiguous terms (What is a “father,” for example?  Or a “motor vehicle”? Or, as we will see below in my discussion of Milavetz, a “debt relief agency”?), and one of the functions of the court system is to interpret just what those terms mean.  When a federal statute is really ambiguous, the federal courts of appeals may disagree about what the statute means.  That’s generally when the Supreme Court will step in, because it wants to ensure that a federal statute is interpreted and applied the same way in every part of the United States.

By on Mar 8, 2010 at 1:30 pm
I’ve been away for two weeks; hence, no Plain English posts.  But what an exciting time to catch up!  For SCOTUS watchers like us, this was not the week to miss, especially because of the oral argument in the long-anticipated gun rights case, McDonald v. City of Chicago.  Other interesting developments?  An examination of Jeffrey Skilling’s trial (especially the jury selection) and the wrap-up of our Black History Month coverage.  Add in a same-sex marriage ruling and a huge Miranda case, and you’ve got a week that could keep even the most reluctant SCOTUS fan entertained. Let’s start with the crown jewel of the week, at least in terms of visibility (yes, some people camped outside the Court for more than twenty-four hours so that they could see the argument):  McDonald v. City of Chicago, the follow-up to the Court’s 2008 decision in Heller v. District of Columbia that the Second Amendment ensures an individual right to bear arms.  To understand McDonald, you’ll first have to understand the concept of incorporation.  In a very early case, the Court held that the Bill of Rights applied only to the federal government.  Over many years of jurisprudence, however, the Supreme Court has ruled that most of the rights protected in the Bill of Rights also apply to the states.   The Court has found that the rights are “incorporated” through the Fourteenth Amendment.  In other words, neither the federal government nor the states can make laws that, for example, limit free speech, deny the right to counsel, or allow unreasonable searches.