Recently in US Supreme Court Category

Somewhat lost among the four opinions issued yesterday was a per curiam decision in Sears v. Upton (scroll down a few pages).  It's a must-read for those handling capital or habeas cases.  The Court finds that the lower courts erred in assessing the prejudice caused by counsel's failure to fully investigate and present mitigating evidence.  The trial court had found that the defendant could not demonstrate prejudice because some mitigating evidence was presented, despite the fact that the mitigation presented at trial was minimal, and the mitigation that was available but not presented was overwhelming.  "Although the [trial] court appears to have stated the proper prejudice standard, it did not correctly conceptualize how that standard applies to the circumstances of this case."  Chief Justice Roberts and Justice Alito would have not granted certiorari.  Justice Scalia authored a dissenting opinion that is joined by Justice Alito.

Via Scotusblog:

In McDonald v. Chicago, the Court reverses and remands in an opinion by Justice Alito.  The vote is 5-4.  Justice Stevens writes a dissenting opinion, and Justice Breyer writes a separate one, joined by Justices Ginsburg and Sotomayor.  The opinion finds that the Second Amendment rights recognized in Heller, to keep and bear arms, applies to the states.  Justice Alito finds that the right exists through the Due Process Clause of the 14th Amendment.  Justice Thomas finds that the right exists through the Privileges or Immunities Clause.  The opinion is 204 pages.

In  Christian Legal Society v. Martinez, the Court affirms and remands, in an opinion by Ginsburg.  The vote is 5-4. Justice Alito dissents, joined by the Chief Justice and Justices Scalia and Thomas.  Justices Stevens and Kennedy each concur.  The Court finds that a policy of Hastings College of Law, which mandates an "all comers" policy for student groups receiving school funding, is constitutionally reasonable and may therefore be enforced.

In  Bilski v. Kappos, the Court affirms, in an opinion by Justice Kennedy.   The opinion for the majority is not supported in all respects by those who join in part.  Justice Breyer concurs in the judgment, joined by Scalia.  Stevens concurs in the judgment, joined by Justices Ginsburg, Breyer, and Sotomayor.  The opinion concerns patent law.

In  Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court reverses in part, affirms in part, and remands, in an opinion by the Chief Justice.  The vote is 5-4.  Justice Breyer dissents, joined by Justices Stevens, Ginsburg, and Sotomayor.  The Court finds that certain limitations on the power to remove board members is unconstitutional under the separation of powers doctrine.

Live coverage is available on c-span.

With thanks to Scotusblog:

Carr v. United States - the Court, on a 6-3 vote, reverses and remands in an opinion by Justice Sotomayor. Justice Scalia concurs in part and in the judgment, but joins most of Justice Sotomayor's opinion.  Justice Alito dissents, joined by Justices Thomas and Ginsburg.

  • Holding: The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

The Court rejects the Government's argument that a violation of 18 U.S.C. 2250(a), which requires (1) a sex-offense conviction, (2) subsequent interstate travel, and (3) a failure to register, may be violated by a failure to register after the effective date, even if the conviction and interstate travel took place before the effective date.  The Court's ruling deals primarily with statutory interpretation and deals extensively with past tense vs. present tense words.  The Court does not address the ex-post facto clause issues because the case is resolved as a matter of statutory interpretation.

Berghuis v. Thompkins - the Court reverses and remands in an opinion by Justice Kennedy.  The vote is 5-4, with Justice Sotomayor dissenting joined by Justices Stevens, Ginsburg, and Breyer.

  • Holding: The Court upholds the state court decision rejecting the claim of a violation of Miranda v. Arizona.  The defendant's silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent.

After advising Thompkins of his rights, detectives interrogated him about a shooting.  He did not say that he wanted to remain silent or that he wanted an attorney.  He was largely silent during the 3-hour interrogation, but eventually said "yes" when asked if he prayed to God to forgive him for the shooting.  The Sixth Circuit found that Thompkins had not waived his right to remain silent and found that the state court was unreasonable in finding an implied waiver based upon Thompkins' response to the detectives.   The Supreme Court finds that the state court's decision was correct and that silence during an interrogation does not invoke the right to remain silent.  Officers are not required to obtain a waiver before interrogating the accused. As with the right to counsel, the defendant must make an unambiguous invocation of the right to remain silent.  In other words, a defendant is required to speak, by saying that he wants to remain silent or does not want to talk, and may not merely remain silent to invoke his right to remain silent.  Insane.  Here's to hoping that our state constitution provides a more rational result.

Levin v. Commerce Energy - the Court reverses and remands, with Justice Ginsburg writing the opinion for the Court.  The vote is unanimous.  Justice Kennedy concurs and Justice Thomas concurs in the judgment only, joined by Justice Scalia.  Justice Alito concurs separately in the judgment.

  • Holding: Under the doctrine of comity, a tax payer's lawsuit claiming discriminatory state taxation must proceed originally in state court, even when it is a request to increase the tax burden on a competitor.


Alabama v. North Carolina -  the Court overrules the exceptions to the Special Master's reports and adopts the Special Master's recommendations.  Justice Scalia writes the opinion for the Court.  The Chief Justice dissents in part and concurs in part, joined by Justice Thomas. 

Samantar v. Yousuf - the Court affirms the lower court's judgment and remands the case, in an opinion by Justice Stevens.  The vote is unanimous.  Justice Alito concurs, Justice Thomas concurs in part and concurs in the judgment, and Justice Scalia separately concurs in the judgment.

  • Holding:  Former Somalian official Mohamed Ali Samantar's claim of immunity to a damages lawsuit for alleged atrocities in Somalia is not governed by the Foreign Sovereign Immunities Act.  But the Court leaves to litigation in the lower court whether Samantar is entitled to common law immunity, or whether he may assert other legal defenses.


The Court granted certiorari in Mayo Foundation for Medical Education and Research v. United States.  The issue presented is whether the Treasury Department can categorically exclude all medical residents and other full-time employees from the definition of "student" in 26 USC 3121(b)(1), which exempts from Social Security taxes "service performed in the employ of a school, college or university" by a "student who is enrolled and regularly attending classes at such school, college or university."  Briefs are available at the link above.

Via Scoutsblog

United States v. Marcus - reversed and remanded, 7-1, in an opinion by Justice Breyer.  Justice Stevens dissents and Justice Sotomayor took no part in the case.

  • Holding: The Court overturns the 2d Circuit's standard on "plain error."

United States v. O'Brien -affirmed, 9-0, in an opinion by Justice Kennedy.  Justice Stevens concurs and Justice Thomas concurs in the judgment only.

  • Holding: The fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, and is not a sentencing factor to be proved to the judge at the time of sentencing.

 Robertson v. United States - writ of cert. dismissed as improvidently granted in a per curiam opinion.  The Chief Justice dissents, joined by Justices Scalia, Kennedy, and Sotomayor.  The issue presented was "whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States. 

Hardt v. Reliance Standard Insurance -  reversed and remanded, 9-0, in an opinion by Justice Thomas.  Justice Stevens concurs in part and in the judgment.  The Court clarified when a worker covered by an employee benefit plan under ERISA is entitled to recover attorney's fees in a lawsuit over benefits.  

Lewis v. City of Chicago - reversed and remanded, in a unanimous opinion by Justice Scalia.

  • Holding: A plaintiff who does not file a timely charge challenging the adoption of an employment practice may assert a claim of disparate impact even if the lawsuit is aimed at an application of the practice.

American Needle v. NFL - reversed, in a unanimous opinion by Justice Stevens.

  • Holding: The NFL's team joint licensing of the use of trademarks on clothing and other consumer goods may be challenged under the Sherman Antitrust Act's section 1.  

The Court also issued a per curiam decision in Jefferson v. Upton, a capital case:  "Petitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child. The state court rejected that claim after making a finding that the attorneys were advised by anexpert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies.See 28 U. S. C. §§2254(d)(1)-(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically §2254(d)(8)). And on that basis, it considered itself "duty-bound" to accept the state court's finding, and rejected Jefferson's claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand."

Certiorari grants:

Skinner v. Switzer 
The motion of petitioner for leave to proceed in forma 
pauperis and the petition for a writ of certiorari are granted. 

Issue: May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 USC 1983 or is such a claim cognizable only in a petition for writ of habeas corpus 

Sossamon v. Texas
Issue: Limited by the Court to this question: whether an individual may sue a state or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act.

Williamson v. Mazda Motor of America, Inc.
Issue: (1) Whether, when Congress has provided that compliance with a federal motor vehicle safety standard "does not exempt a person from liability at common law," 49 U.S.C. § 30103(e), a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempts a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions; (2) whether that same federal motor vehicle safety standard impliedly preempts a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles.

AT&T Mobility v. Concepcion
Issue: Whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures -- here, class-wide arbitration -- when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.

Arizona Christian School Tuition Organization v. Winn; Garriott v. Winn

Issues: (1) Whether respondents have taxpayer standing when they cannot allege that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds; and (2) whether a tax credit that advances the legislature's legitimate secular purpose of expanding educational options for families unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organizations than nonreligious ones.

Briefs and lower court opinions on the cert. grants are available at the Scotusblog link above.

This morning the US Supreme Court issued a decision in Graham v. Florida.  The defendant was 16 years old when he was sentenced to life for a burglary offense.  Florida does not have a parole system, so he could not be released absent a grant of executive clemency.  The Court, in a 6-3 decision, holds that the sentence violates the 8th Amendment as cruel and unusual punishment.

The Court notes that although most states allow for a life-without sentence for juvenile offenders for some non-homicide offenses, only 129 juvenile offenders are serving such sentences, and of those 77 are in Florida.   The remaining 52 imprisonments are in 10 states and the federal system.  The Court relies upon the rarity of the sentence in finding that it is cruel and unusual, as well as the inadequacy of penological theory to justify the sentence.  It notes that a study's authors were not ably to obtain a definite tally for Nevada (or Utah and Virginia), but the Court's research shows that Nevada has five juvenile nonhomicide offenders serving life without parole sentences.  The Court also finds that nonhomicide crimes cannot be compared to murder in their severity and irrevocability.  A life sentence may be imposed, but the State must provide a meaningful opportunity for release.  The Court also notes that the United States is the only country that imposes this type of sentence.

The Court quotes former-Nevada Supreme Court Justice Springer in Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989): "[T]his sentence [of life without the possibility of parole] 'means denial of hope; it means that good behavior and character improvement are immaterial; it means whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.'"

The majority opinion is authored by Justice Kennedy and joined by justices Stevens, Ginsburg, Breyer and Sotomayor.  Justice Stevens filed a concurring opinion that was joined by justices Ginsburg and Sotomayor.  Justice Roberts filed an opinion concurring in the judgment.  Justice Thomas filed a dissenting opinion that was joined by Justice Scalia and in part by Justice Alito.  Justice Alito also filed a dissenting opinion.

The Court issued two other opinions today.  In United States v. Comstock, the Court in a 7-2 decision authored by Justice Breyer, Congress acted within its authority in enacting 18 USC 4248, which allows the civil commitment of mentally ill federal prisoners who are sexually dangerous. 

In Abbott v. Abbott, the Court holds that a parent has a right of custody under the Hague convention on child abduction that gives the parent authority to consent before the other parent can remove a child fromt he country where the child is living.

Scotusblog provides the relevant docs:

Title: Schwarzenegger v. Entertainment Merchants Association
Docket: 08-1448
Issues: (1) Whether the First Amendment permit any limits on offensive content in violent video games sold to minors; and (2) whether a state regulation for displaying offensive, harmful images to children is invalid if it fails to satisfy the exacting "strict scrutiny" standard of review.

Title: Ortiz v. Jordan
Issue: May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

Via Scotusblog:

In United States v. Stevens, the Court affirmed the lower court decision in an opinion by Chief Justice Roberts.  The vote was 8-1, with Justice Alito dissenting.  The Court strikes down as substantially overbroad the federal law making it a crime to depict animal cruelty in commercial expression.

In Jerman v. Carlisle, the Court  reverses and remands the lower court decision, with Justice Sotomayor writing for the majority.   On a 7-2 vote, the Court holds that in defending against a violation of the Fair Debt Collection Practices Act, one may not use the defense that it was simply an error or mistake.  The opinion is here.

In Perdue v. Kenny A., the Court reverses and remands the lower court.   Justice Alito writes for the Court. Justice Breyer dissents in part, joined by Justices Stevens, Ginsburg, and Sotomayor.  The Court rules that the calculation of an attorney's fee may be increased if the lawyer has provided a superior performance but only in "extraordinary circumstances."  The opinion is here.

In Conkright v. Frommert, the Court reverses and remands the lower court, in an opinion by Chief Justice Roberts.  The vote is 5-3, with Justice Sotomayor taking no part.  Justice Breyer dissents, joined by Justices Stevens and Ginsburg.   The Court rules that the federal district court should have deferred to the ERISA plan administrator's interpretation of the plan's terms.  The opinion is here.

The US Supreme Court issued one opinion today.  In a unanimous decision, authored by Justice Thomas, the Court holds in United Student Aid Funds v. Espinosa that a bankruptcy court order, which discharged a student loan debt without a showing of undue hardship, was not void under Rule 60(b)(4) and was not void based on the debtor's failure to serve the creditor because the creditor had actual notice of the plan and failed to object.

Yesterday, the Court granted certiorari in four cases.  Scotusblog provides details and links to relevant docs:

Title: Connick v. Thompson
Docket: 09-571
Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney's office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney's office for a single Brady violation undermine prosecutors' absolute immunity?

Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard -- that the erroneous admission of a coerced confession at the trial is not harmless -- applies when a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1).

Title: Kasten v. Saint-Gobain Performance Plastics Corp.
Docket: 09-834
Issue: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

Title: Flores-Villar v. United States
Docket: 09-5801
Issue: Whether the Court's decision in Nguyen v. Immigration and Naturalization Service (2001) permits gender discrimination that has no biological basis?



Slow week

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It's been a slow week for both the US Supreme Court and Nevada Supreme Court.  Opinions are expected from the US Supreme Court next Tuesday.  I have no ability to predict when opinions will issue from the Nevada Supreme Court.  Since December, there has been only one opinion in a criminal case from the Nevada Supreme Court and that opinion involved the publication of a previously unpublished order. 

The US Supreme Court has a new website and a new URL:

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