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Week Ahead at SCOTUS: Is It December Already?

Nov. 22, 2017, 7:40 PM

Ok… so it’s not officially December yet. But that doesn’t mean it’s too early for the U.S. Supreme Court’s “December sitting,” which this year kicks off Nov. 27.

Turn It Up: After a, well,quiet November sitting, the justices have dialed up the excitement for December. Most of the noise surrounding the two-week argument session has so far centered on the second week’s arguments, which include aclashbetween the First Amendment and anti-discrimination laws. But you’re sure to want to tune in to the first week’s arguments too.


  • Headlining the first week of the December sitting isCarpenter v. United States, a Fourth Amendment challenge that tests the “the balance between surveillance and privacy in the mobile phone era,” according to Bloomberg Law’sJordan Rubin.


  • At issue in Carpenter “is whether the Fourth Amendment demands a warrant for historical mobile phone location records,” which can help place criminal defendants near the scene of a crime.


  • InCarpenter, law enforcement “got the data from Carpenter’s wireless carrier with a court order under theStored Communications Act, rather than with a probable cause warrant, which would have required more proof.”


  • Courts across the country “have held that a warrant isn’t required for the phone data. So a contrary ruling from the justices—that a warrant is required—would place a heavier burden on law enforcement’s investigative practices going forward.”


  • Carpenteris one of a growing number of cases in which the justices wrestle with how to apply 18th century constitutional provisions to modern technology.


  • Also on tap is the constitutionality of the U.S. Patent and Trademark Office’s increasingly popularinter partes reviewproceedings, “which allow parties to challenge whether the Patent and Trademark Office properly issued a patent,” Bloomberg Law’sTony Dutra


  • “IPR proceedings, first made available five years ago when the America Invents Act was implemented, have led to the cancellation of tens of thousands of patent claims” by the so-called “death squad”—that is, the PTO’s Patent Trial and Appeal Board.


  • Companies and individual inventors with patents argue that “a patent is a private property right that can only be revoked by a federal court, not by the PTO.”


  • “On the other side are the Silicon Valley heavyweights and generic drug manufacturers that have used IPR proceedings as a way to avoid the higher hurdle for showing patent invalidity in court.”



  • The case centers on whether the definition of “whistleblower” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 includes individuals who didn’t report the alleged misconduct to the Securities and Exchange Commission but only reported internally within the company.


  • “The Supreme Court in the past has beenprotectiveof, and sometimes broadened, employees’ ability to bring retaliation claims,” according to Bloomberg Law’sJay-Anne B. Casuga.


  • The court’s determination whether to follow that line of cases has enormous consequence for employers and employees.

Awaiting Orders: As well as kicking off another argument session, the justices will issue an order list Nov. 27. That list may include some grants—that is, new cases that the court will hear this term. It will undoubtedly include a number of denials.

  • On the list of possible grants isTharpe v. Sellers, a capital case that’s been lingering on the court’s docket for several months.


  • The justiceshaltedTharpe’s imminent execution in September over the objection of Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch. The majority of the justices wanted more time to figure out whether they’d hear the case or not.


  • Since then, the cases has been discussed by the justices at six private conferences.


  • The case deals with racism in the criminal justice system, an issue that’s been popular with the justices in thepast few terms.


  • A grant would set the case for oral argument sometime in 2018. A denial would clear the way for Tharpe’s execution.


  • Monday’s order list may also include word onKolbe v. Hogan, a challenge to Maryland’s ban on assault weapons and large-capacity magazines.


  • The case is a “first-timer” to the justice’s private conference, meaning that a grant on Monday isn’t likely. The court typically “relists” a case—that is, discusses the case during at least one more private conference—before granting the case.


  • The justices haven’t been eager to hear Second Amendment challenges recently and have already turned away cases challenging similar bans ina Chicago suburband inConnecticutin recent terms.

DACA’s Doom: The Trump administration may soon ask the Supreme Court to intervene in a politically charged immigration fight over the popular Deferred Action for Childhood Arrivals program.

  • DACA temporarily halted removal for hundreds of thousands of young immigrants who were brought to the country illegally when they were children.


  • In September, the Trump administration announced that it would end the program.


  • SCOTUS starTed Boutrousis now suing the administration over that decision.


  • Although the litigation is in its infancy, the Trump administration is already on the defense. TheNinth Circuitordered the administration to turn over documents related to the cancellation of the program, despite the administration’s claims of executive privilege.


  • There’s beenspeculationthat the administration may ask the Supreme Court to step in as early as this week.


  • If the justices want to intervene, they’ll be helped along by a crisp dissent from the Ninth Circuit’s decision authored by Obama Supreme Court shortlister Paul Watford.

Travel Ban 3.0: While the DACA dispute hasn’t yet reached the Supreme Court, the Trump administration’s inability to enforce the latest version of the travel ban is already at the high court’s doors.

  • The administration asked the high court to put on hold two lower court decisions—one out of theNinth Circuit, the other out ofMaryland—that curtail the implementation of thelatestversion of the travel ban.


  • Those lower courts allowed the administration to implement the ban except as to individuals who have a “bona fide relationship” with a U.S. citizen or entity.


  • That language tracks limitations set in place by the Supreme Court while reviewing a previous version of the travel ban. The high courtdismissedthe case when the administration announced the latest version of the ban—known informally as travel ban 3.0.


  • Responses to the Trump administration’s requests to allow the ban to go into full effect are due Nov. 28 by noon.

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