Playing Catch-Up!

So, I’ve fallen pretty far behind in, well, everything recently. Sorry ‘bout that. We’re going to do a little catch-up today, by which I’m going to go through the cases that were argued before SCOTUS in little one-two sentence bites, so you can get an idea of what’s on the Court’s plate this month.

So, the first week of November, we had Spokeo, Inc. v. Robins, Lockhart v. United States, and Foster v. Chatman, all of which I’ve already discussed. The other cases are under the break.

Argument Analysis: Spokeo, Inc. v. Robins

As promised (if belated), I did finally get through the transcript for Spokeo, Inc. v. Robins! If you need a refresher, you can remind yourself of what Spokeo’s all about here. And, if you want to listen to the oral argument or read the transcript, you can do that here.

Anyway! On to the analysis. Right off the bat, we have Kagan and Sotomayor tossing questions at Andrew Pincus, Spokeo’s lawyer. They seem very skeptical of Spokeo’s argument (me, too), so I think they’re pretty safe bets for Robins. Ginsburg keeps mostly silent, but she brings up a couple of good hypotheticals over the course of the argument that say, basically, what I said: Spokeo’s argument just isn’t sensical.

Scalia pops up with a lot of questions about what harm Congress meant to protect against -- the statute seems more concerned with procedures about correcting credit reporting problems than the problems themselves, and Scalia seems to be angling for a decision that would say that, whatever Robins contends, the injury that he’s complaining of right now aren’t what Congress was trying to protect against. Then again, it’s Scalia, and he might just want to hear himself talk. He throws a couple of softball pitches* to Pincus, including answering one of Kagan’s questions for Pincus, so it’s probably a pretty safe bet that he’s going to come out for Spokeo.

On the other hand, Scalia had a lot of questions for Robins’ lawyer, William Consovoy, which, in my opinion, Consovoy handled pretty adroitly.

Thomas, of course, asked no questions whatsoever.** In cases of this nature, you can usually count on Thomas to follow Scalia.

Roberts got into it a bit with Consovoy, as well, at one time engaging in a long hypothetical situation that, sadly, Consovoy didn’t quite seem to get. Kagan jumped in to try and save him, but I think we can count Roberts in the Spokeo camp.

Breyer and Alito kept mostly silent, especially Alito, though Breyer’s questions seemed to favor Robins. Kennedy’s questions were, naturally, obtuse. I’m going to go out on a limb and say that Alito will vote with the conservative judges, and Breyer with the liberals, which, of course, makes Kennedy the deciding vote.

The real issue here seems to be all of the judges are concerned with a ruling that will open the door for Congress to grant standing everywhere -- or worse, allow any plaintiff to claim a right to sue for any violation of statute, which is absolutely against Supreme Court precedent. And no one seems to have liked the 9th Circuit’s decision; at one point, Roberts suggests a way for Robins to win while still deciding that the 9th Circuit was wrong, and Kagan flat out says, “Now, look, it’s not a good opinion.” Again, the 9th Circuit has a reputation for being frequently overturned by SCOTUS, so a decision that lets Robins win and still effectively overturns the 9th Circuit’s decision is not out of the question.

As we stand now, I think it’s too close to tell whether Robins win, though on my own analysis, I think it’s pretty clear he should win. What I suspect might happen is a decision that lets Robins pursue his case, but severely limits the ability of other people to bring such lawsuits, which I think will please most of the justices. Remember that Robins claims that a wide variety of specific information that Spokeo reported about him was false, and gave examples of how it may’ve hurt him and how he would never know. The Court could, and very well might, hold that any future plaintiffs will have to show the same sort of prospective injury.

Because someone asked, I figure I’ll mention it: there’ll be a few months before we get an actual decision; probably it won’t come this year. Of course, when it does, I’ll be there to break it down.

* In lawyerspeak, a softball is an easy or obvious question asked in oral argument, and they’re usually thrown by judges trying to help out a struggling lawyer.

** Thomas, famously, holds the oral argument process in utter contempt. He’s been known to sleep through oral argument, or even get up and leave the room while the lawyers are arguing. He has gone years between asking questions in oral argument.

A Question!

So, someone actually asked me a question, so I’m gonna answer it. I have not quite figured out how to show a picture of the ask in, well, question, so I’ll just quote it.

The question was: ‘What is your take on Brown v. EMA?’* This is a First Amendment case that, honestly, I don’t remember very well, but I’ve got the decision here and let’s get into it! Woo!

Happy Halloween!

It’s the most wonderful time of the year! Ahem. I *really* like Halloween, it is definitely my favorite holiday. So, to celebrate, we* here at lawhorse have a Very Special Blog Post for you: a lawsuit over a haunted house. 

In Nyack, New York, there is a haunted house. By which I mean, by operation of law, there is a house deemed legally haunted. Today, we talk about Stambovsky v. Ackley, a poltergeist, and one judge’s great, great love of puns.

Spokeo, Inc. v. Robins Preview

As promised, here's what might be one of the most important cases this term: Spokeo, Inc. v. Robins. This is an important case that will have huge consequences for who can bring a lawsuit in the future.

To really understand what's going on, you do have to have a handle on Article III standing, as that's the issue that's at stake here. Luckily, I talked about standing just a few days ago! If you haven't read that post yet, please do. I'll wait below the cut.

Article III

So, there’s a REALLY IMPORTANT case coming up on Monday, and for once it’s not about criminal law, but something called Article III standing. Because the case really doesn’t make sense unless you know something about standing, I’m gonna talk about that today, and talk about the case later.

So, why is it called Article III? Because it comes from Article III of the U.S. Constitution, which creates the basis for the judiciary power of the federal court system (and also explains treason, because that makes sense, right?). You can read the full text <a href=“https://www.law.cornell.edu/constitution/articleiii”>here</a>. What’s important is Section 2, which reads:

This is the so-called ‘Cases and Controversies’ clause, which grants the federal courts to hear, well, cases and controversies. There’s been a lot of ink spilled over the past two centuries delineating what a ‘case or controversy’ is, but the bottom line for our purposes is that the federal courts only have power to review an actual case. No federal court has the right to make a ruling unless someone wins (some states DO grant the power to issue what are called advisory opinions; decisions based not on a case, but rather on a legal question that someone wants answered to, for instance, decide if specified conduct is legal).

That means, to bring a lawsuit, the plaintiff (the person who sues someone else) must have standing. Standing is a term of art* that means the person has the right to contest something. A plaintiff in a lawsuit in federal court must have what is called Article III standing -- that means they have to show that, if they win, they win *something*. In other words, as the plaintiff, they have the burden of showing that their case is a ‘case or controversy.’ There is a pretty simple test for determining that:

First, the plaintiff must show he has an "injury in fact” -- that the plaintiff, specifically, was actually hurt by some action.

Second, the plaintiff must show that his injury arose from an action by the defendant.

Finally, the plaintiff has to show that the court can grant some relief.

And that’s Article III standing, in a nutshell! Later this week, I’ll talk about what that means in the upcoming case of Spokeo, Inc. v. Robins, which the Court will hear argument on Monday.

* In the law, a ‘term of art’ is a particular word or phrase that has a specific meaning and usage.

Argument preview: Foster v. Chatman (really about Batson v. Kentucky).

Hey, I’m back! More or less. Still editin’ away on my book, but I thought I’d take a moment to preview some of the stuff coming up on SCOTUS’s calendar for the November sitting, which starts, easily enough, on the first Monday in November.

The Justices will hear argument in two cases that day, but I’m just going to talk about one of them, which is *impressively* straightforward. That case is Foster v. Chatman. 

Still here!

I haven’t forgotten about this! I promise! ^.^; I’ve just been craaaazy busy at work, and, at the same time, I’m editing a book to try and submit to a publisher. I’m under a horrible deadline, so I’m spending all my spare time on *that* stuff (and, well, also Final Fantasy). I’ll be back in the first week of November, I promise! (There might be some little updates over the next few days, too).

Case Summaries: Hurst v. Florida

Today, I’m going to talk about yet another big criminal law case, as well as a big death penalty case: Hurst v. Florida. The Supreme Court heard argument on this case on Tuesday, but, me being the busy little pony that I am, I haven’t had a chance to read it yet, so I’ll just talk about what’s going on in the case itself, after the break:

Case Summaries: Montgomery v. Louisiana

Today, SCOTUS heard argument in two big cases that are going to have pretty serious repercussions. I haven’t had a chance to read the argument transcripts yet, so my argument analysis will have to come later.

However! I can talk about the cases themselves. So that’s what I’m going to do today, starting with Montgomery v. Louisiana. The other case, Hurst v. Florida, I’ll tackle (probably) tomorrow.

SCOTUS prediction: Kansas v. Carr and Kansas v. Gleason

So, commentators are saying that this term is going to be chock-full-o’ Eighth Amendment cases. Given last term’s blockbuster (and, in my opinion, poorly decided) decision in Glossip v. Gross -- or more specifically, Justice Breyer’s scathing dissent where he opined that the death penalty as it exists now is most likely unconstitutional -- and Justice Scalia’s recent prognostication that the death penalty is likely to be overturned in short order, it’s not that unlikely a prediction that we might see a lot of death penalty cases this term. And, in fact, yesterday we heard oral argument in the first two (actually three) death penalty terms. I’m gonna talk about these today.

About SCOTUS

For those not in the know, as it were, SCOTUS means Supreme Court of the United States (I have also sometimes seen USSC, but that looks funny).

Anyway. The Supreme Court’s term starts on the first Monday of October each year, and goes until, well, they finish (typically June). There are currently nine members of the Court, but it wasn’t always that way. When SCOTUS was first created in 1789, the Judiciary Act (which fulfilled the promise of the Supreme Court) only allowed for six justices. The first court actually only had five: Chief Justice John Jay, and Associate Justices John Rutledge, William Cushing, James Wilson, and John Blair, Jr. The sixth justice, James Iredell, would join the bench in 1790.

At the start, the Court was not particularly important. In fact, the only case of note in its early years, Chisholm v. Georgia, was almost immediately overturned by the passage of the 11th Amendment (one day I will talk about the 11th Amendment, because I hate it so bad). It wasn’t until Chief Justice John Marshall, who took the bench in 1801, that the court as we see it started to take place. Possibly the most important case in the history of SCOTUS, Marbury v. Madison, was before the Marshall Court (I’ll talk about that case, too, some day).

Of course, the US has a system of checks and balances. SCOTUS has the power to overturn acts by both the legislative and executive branches when those acts violate the Constitution. Congress (and the States) have the power to amend the Constitution, and the President has the power to nominate Supreme Court Justices.* One of the most important checks against SCOTUS is one that’s little known, however, and that’s the power of Congress to amend the Judiciary Act, and thus change the number of justices. It’s happened before (that’s why we have 9 instead of 6), and it’s hard to overstate its importance. The more justices on the court, the more dilute the voting power of any individual justice; not to mention that the President would get to immediately nominate new justices to take the bench.

As the 2015-2016 Term progresses, I will provide updates for cases I think are interesting or important. In the early days of the term, we’re going to mostly see oral arguments, which are sometimes fun to read or listen to, but not hugely predictive. Later on, I’ll go through the Court’s decisions, as they come out (although I should note that the Court actually delivered it’s first decision of the term yesterday, on its first day officially back -- I’ll talk about that case soon).

For the sake of completeness, the current Supreme Court justices are Chief Justice John Roberts, and (in order of seniority) Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Chief Justice Roberts just celebrated his tenth anniversary on the court, which is pretty impressive when you compare him to the first three Chief Justices: John Jay (6 years), John Rutledge (less than 1 year), and Oliver Ellsworth (4 years).

What is up with this?

So, for the past few months, I’ve been doing legal commentary on Twitter. Unfortunately, the Law is somewhat, well, complicated, and 140 characters is not conducive to talking about the ins and outs of the Supreme Court. I’ve been *promising* to do a blog-sort-of-thing for a while now, so, well, here we go.

So who am I? I am, actually, a lawyer! I’m admitted to practice in the Great State of New York, and I work, currently, for the government, and grade practice bar exam essays part-time. I also happen to be a furry (sorry, not sorry), and I’ve been a My Little Pony fan since the 80s. I am also a writer of fictions, though you probably haven’t read any of it. Hopefully, that’ll change. I speak English very well, French reasonably well, Italian and Spanish poorly, and I can swear in Welsh. I tend to be wordy.

To answer the question above, this will be where I chat about legal news, old case law, and so on. My focus, of course, will be New York and federal law, but whatever I see that’s interesting I can chat about. And, of course, the ask box is open, so if you wanna ask about a particular case or law, I can talk about that (if I think it’s interesting, too, sorry).

What isn’t this? It’s not legal advice. It would be unethical of me to offer legal advice in this format, and, in any event, my job prohibits me from taking outside legal work. So if you have a legal problem you need help with, I encourage you to find a lawyer in your local jurisdiction and talk to them. Anything I say is just me. Nothing said here creates a client-attorney relationship with anyone, nor is it intended to.