Good morning, and welcome! It's great to be here. We are expecting orders from last week's conference at 9:30 am.
There are a lot of interesting cases on which the justices could act today. For those of you who haven't joined us in the last several months, one of them is Masterpiece Cakeshop v. Colorado Civil Rights Commission, a lawsuit involving a Colorado man who objects to creating cakes for same-sex weddings. It has been relisted nine (!) times. The conventional wisdom has been that someone (Justice Alito, perhaps) is dissenting from the denial of review, but even that wouldn't seem to take this long. We'll find out eventually, right?
We have one grant this morning, in Husted v. A. Phillip Randolph Institute. The case is a challenge to Ohio's procedures for removing voters from voter registration lists. A labor/civil rights group, APRI, contends that the procedure violates federal laws governing voting. The case was relisted just once before being granted.
Nothing on Masterpiece Cakeshop or, it seems, Peruta today. So it looks like I will get to use those tweets again next week! (Sorry, Peruta fans.)
There are two cases against Chief Justice John Roberts and Barack Obama, respectively, that were summarily affirmed for lack of a quorum. I don't know specifically what those cases were about, but I suspect that they were challenges to actions by the court and the former president that may not have necessarily rested on the strongest of legal grounds.
We have one CVSG today, in Westerngeco v. Ion Geophysical, No. 16-1011. I was going to guess, just based on the name, that it was a patent case, and lo and behold, here's the question presented: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S.C. § 271(f).
The court also does not appear to have acted on Sessions v. Binderup, a Second Amendment challenge to the law barring felons from having a gun as it applies to two specific men.
The grant in Husted v. APRI today is interesting because, as John Elwood observed in his always-fabulous Relist Watch last week, there doesn't seem to be a split among the lower courts on the question.
Okay, unless anyone has any lingering questions about today's orders, let's move on to the merits docket.
This blog's Andrew Hamm has done a terrific job trying to handicap some of the remaining decisions, and is the source for all of the info that follows.
October sitting (Completed; each justice authored one opinion, not counting Gorsuch.)
November sitting (Ginsburg has not authored an opinion this sitting. Breyer has authored two. Amy, in your analysis you wrote that "the government's strongest opposition came from Justice Ruth Bader Ginsburg.")
1) Sessions v. Morales-Santana
December sitting (Roberts and Alito have not authored yet. Below is what Kevin Johnson said about these justices after oral argument.)
1) Jennings v. Rodriguez
Oops, published too soon. I always forget that hitting enter also publishes. But to summarize, the October sitting is done. The November sitting has one opinion outstanding: Sessions v. Morales-Santana, a challenge to the different treatment that the children of U.S. citizens receive depending on whether the U.S. citizen parent is the mother or father. Justice Ruth Bader Ginsburg is the only justice who has not written for that sitting, which would seem to bode well for Morales-Santana, but I am starting to be suspicious that perhaps the justices are deadlocked and may wind up ordering re-argument, given how long it has taken (Ginsburg is usually a pretty fast opinion writer) and the fact that the court deadlocked on this issue earlier when Justice Kagan was recused.
There appear to be two boxes of opinions today.
The first opinion is in County of Los Angeles v. Mendez, from Justice Alito.
It is unanimous, except that Justice Gorsuch did not participate.
The court rejects the Ninth Circuit's "provocation" rule, which allows police officers to be held liable when they seize someone using reasonable force, but they committed a separate Fourth Amendment violation that contributed to the need to use force.
A different Fourth Amendment violation, the court holds today, "cannot transform a later, reasonable use of force into an unreasonable seizure."
The second opinion is in BNSF Railway v. Tyrrell, involving personal jurisdiction and the Federal Employers' Liability Act. This was a quick one, as the case was argued just over a month ago.
This was a case in which all 9 justices participated. Ginsburg (jurisdiction guru) writes for the court, joined in full by all (including Gorsuch) but Sotomayor. Sotomayor concurs in part and dissents in part.
The judgment of the Montana Supreme Court is reversed and remanded. (Not a big surprise.)
The court reiterates that its case law holds that the Fourteenth Amendment's Due Process Clause does not allow a state to hale an out-of-state corporation into court when the corporation is not "at home" in the state and the activity at issue occurred outside the state.
The Montana Supreme Court had ruled that Tyrrell, who had worked for BNSF, could sue BNSF in Montana because the Federal Employers' Liability Act gives state courts jurisdiction over railroads doiong business in the state.
The next case is Esquivel-Santana v. Sessions. It is by Justice Thomas and is unanimous, although Gorsuch did not participatee.
The decision of the Sixth Circuit is reversed. The court holds that, in the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16.
We have the fourth and final opinion today, Impression Products v. Lexmark. The decision is by the Chief Justice, and Gorsuch did not participate. Ginsburg concurs in part and dissents in part, and everyone else joins in full.
The decision below is reversed and remanded. The court holds that a patentee's decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.
In her opinion, Ginsburg concurs w/r/to exhaustion in the domestic context. She agrees that a U.S. sale exhausts the patent holder's U.S. rights, but she disagrees on international sales, holding that they do not exhaust a U.S. inventor's U.S. patent rights.
That is our final opinion for the day.
That's all for today, folks. Thanks so much for joining us, everyone! Please come back next time, so we can once again renew our speculation about when the justices will act on Masterpiece Cakeshop, Peruta, Sessions v. Binderup, and the cell-site data cases. Have a good week!
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