This Week’s Brief: November 4

The Justices heard arguments in six cases this week: a wildly complicated case that blends statutory interpretation with federal immigration law; a Fourth Amendment search and seizure case about traffic stops; two maritime cases, one of which actually concerns admiralty law while the other stems from the discovery of Blackbeard’s pirate ship (yes, you could say Blackbeard’s ship charted a course to the U.S. Supreme Court); a showstopper of an environmental law case; and an ERISA statutory interpretation case that, I admit, nearly put me to sleep. As an added bonus, the Court added a copyright case to its docket and denied a petition for a stay of execution. All in a week’s work for the Nine! Here’s your brief for the week of November 4.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 6
Cert. Grants: 1

O.T. 2019:
Cases Decided: 0
Cases Remaining: 50
Weeks Left in Term: 33



The Court released more orders from last Friday’s private conference but didn’t add any new cases to its docket after adding Liu v. SEC in a miscellaneous order last week. The Court vacated and remanded two cases in light of United States v. Davis and Rehaif v. United States (two criminal cases decided last term).

Oral Arguments:

Beginning at 10:00am, the Court heard arguments in two merits cases. First on the docket was Barton v. Barr, a case that confoundingly mixes statutory interpretation with federal immigration law. Andre Barton is a Jamaican immigrant who entered the U.S. on a visitor’s visa in May 1989 and became a lawful permanent resident (LPR) in 1994. In January 1996, Barton was charged with aggravated assault, and the federal government sought to begin deportation proceedings against him.

Congress has enacted certain protections against deportation proceedings for many LPRs and other noncitizens who have significant ties to the United States. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), an LPR can move to “cancel” or dismiss deportation proceedings if the LPR has “resided in the United States continuously for 7 years after having been admitted in any status.” Barton sought cancellation of his deportation proceedings under IIRIRA, but the government responded that Barton was ineligible for cancellation because he had not accrued the necessary seven years of continuous residence. Specifically, the government cited another provision of IIRIRA which says that a period of continuous residence ends when a resident commits an offense that would render him “inadmissible” or “removable” under IIRIRA. This is known as IIRIRA’s “stop-time” rule.

Here’s where the case gets tricky: Under IIRIRA, Barton’s aggravated assault conviction does not render him deportable, though it would render him inadmissible. But Barton has already been admitted and become an LPR. So, Barton argues that since he is no longer seeking admissibility, his aggravated assault conviction did not trigger the stop-time rule for deportation, hence he should be able to invoke the cancellation defense against the government’s deportation proceedings. The government, however, responds that even though Barton is not seeking admissibility, his offense would trigger the stop-time rule for inadmissibility, hence he should not be able to invoke the cancellation defense since he has not accrued the necessary seven years of continuous residence. Put differently: Barton says “inadmissible” and “deportable” under IIRIRA are mutually exclusive; he cannot be both inadmissible and deportable at the same time, so the government cannot teleport the stop-time rule from an inadmissible offense to a non-deportable offense. On the other hand, the government says they aren’t mutually exclusive, and then simply the inverse of everything else.

The Supreme Court will decide, effectively, who is right. The question presented is whether an LPR who is not seeking admission to the United States can be “render[ed] . . . inadmissible” for the purposes of IIRIRA’s stop-time rule. The oral argument in Barton is available via audio and transcript.

The other case argued on Monday was Kansas v. Glover, a Fourth Amendment search and seizure case. A Kansas police officer ran a registration check on a pickup truck and found that the owner’s license had been revoked and had not yet been renewed. Assuming the owner (Charles Glover, Jr.) was driving the truck, the officer pulled the truck over, confirmed Mr. Glover was in fact driving, and issued Mr. Glover a citation for driving with a revoked license. But the Kansas Supreme Court concluded the traffic stop violated Mr. Glover’s Fourth Amendment right against unreasonable search and seizure. The court said that it was unreasonable for a police officer to simply assume the registered owner of a vehicle is in fact driving the vehicle on the roadway, and thus the police officer did not have probable cause to pull Mr. Glover over. Therefore, the search was unlawful, the evidence against Mr. Glover was tossed overboard under the exclusionary rule, and Mr. Glover was free to go.

Kansas appealed to the Supreme Court, who will decide whether it is reasonable for a police officer to assume that the registered owner of a vehicle is actually driving the vehicle, for the purposes of an investigative stop. The oral argument in Glover is available via audio and transcript.


Monday afternoon, after the conclusion of oral arguments, the Court released two miscellaneous orders in which it declined to stay the execution of Charles Russell Hines. Hines, a South Dakota inmate, was convicted of murdering his coworker in 1993 and sentenced to death. Justice Sotomayor penned a short, two-page opinion respecting the denial. She underscored an argument Hines’ attorneys made during state clemency proceedings, which said that the state had not allowed psychiatric experts to evaluate Hines while he was in prison. The district court did not agree, reasoning that it wasn’t the court’s place to direct a state on how to conduct the state’s own clemency proceedings, and the Eighth Circuit largely agreed. Sotomayor admitted the record was “unclear” on whether the psychiatric experts should have been granted access to Hines during his state clemency proceedings, and for this reason she did not dissent from the Court’s order. But she did write separately to note that (1) the Court’s denial of Hines’ petitions “does not represent an endorsement of the lower courts’ opinions” and (2) that if South Dakota were permitted to bar psychiatric experts from evaluating death row prisoners during state clemency proceedings, it “risks rendering this fundamental [clemency] process an empty ritual.”


The Court went swimming in oral arguments again on Tuesday, hearing two cases that concern admiralty law and maritime matters. First up was CITGO Asphalt Refining Co. v. Frescati Shipping Co.Ltd. The case concerns the application of a well-known clause in shipping contracts under federal maritime law. When shipping companies lease their vessels to other shipping companies, they often draw up a contract that contains a “safe-berth” clause. For example, the clause at issue in this case says the following: “The vessel shall load and discharge at any safe place or wharf . . . which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer.” What ran this specific charter into the ground, however, was a 2004 incident in which a cargo ship—which was carrying CITGO cargo and operated by Frescati—struck a submerged anchor and spilled over 250,000 gallons of oil into the Delaware River.

The question for the Court is whether such a “safe-berth” clause functions as a guarantee of a ship’s safety, or only as a duty for the operator of a ship to conduct his due diligence about a safe course. The federal appeals courts have split on this question, so the Justices will resolve that divide. The oral argument in CITGO is available via audio and transcript.

The latter case argued on Tuesday was Allen v. Cooper. In 1998, a private company that specialized in salvaging shipwrecks discovered the “Queen Anne’s Revenge,” the (in)famous Blackbeard’s sunken pirate ship. The company then hired Frederick Allen to document the salvaging of the ship. Allen secured copyrights for his productions, but the State of North Carolina began using his footage online without permission. When Allen complained, North Carolina enacted a state law that placed in the public record all photographs and all audio and video recordings of shipwrecks or the salvaging of shipwrecks.

Allen promptly sued in federal court, arguing North Carolina’s new “Blackbeard” law (as it is called) infringed his federal copyright. North Carolina responded that it had sovereign immunity, and so his claim should be dismissed. The district court sided with Allen, but the Fourth Circuit reversed. The Supreme Court will decide whether the 1990 Copyright Remedy Clarification Act, which provides remedies for someone whose federal copyright was infringed by a state, waived state sovereign immunity to copyright claims. The oral argument in Allen is available via audio and transcript.


The Court heard its final oral arguments in two more cases on Wednesday. In a significant environmental law case (County of Maui, Hawaii v. Hawaii Wildlife Fund), the Justices will decide whether the 1972 Clean Water Act (CWA) requires a permit when point-source pollutants are conveyed to public waters via a nonpoint source (like groundwater). Both sides lay bare the consequences that would follow if the Court does not side with them: the County of Maui says that if the Court determines the CWA requires such a permit, millions of non-point pollutant sources—like even areas of groundwater—would have to obtain permits for the first time. The Hawaii Wildlife Fund counters that requiring permits is a better alternative than allowing polluters to skate through a loophole by discharging unlimited amounts of pollutants from nonpoint-source areas into public waterways. The oral argument in Hawaii Wildlife Fund is available via audio and transcript.

The final case argued this week was Retirement Plans Committee of IBM v. JanderJander asks the Justices about the correct way to apply a pleading standard set out in the Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoeffer to fiduciary fraud claims under the Employment Retirement Income Security Act of 1974. The question for the Court is whether Dudenhoeffer‘s “more harm than good” pleading standard can be satisfied by generalized allegations that the harm of an inevitable disclosure of an alleged fraud generally increases over time. The oral argument in Jander is available via audio and transcript. (Please forgive my cursory summary of Jander; to fully wrap my brain around this case, I need a few hours to piece through the briefs, but my undergraduate schedule was not at all conducive to doing that this week.)


The Court held no proceedings on Thursday.


The Court released a miscellaneous order Friday afternoon in which it granted cert for United States Patent and Trademark Office (USPTO) v. B.V. The travel and booking company,, sought to trademark its name as such. But under the Lanham Act, a generic term or word cannot be registered as a trademark. The USPTO denied’s trademark application, but the Fourth Circuit reversed and held the Lanham Act did not preclude from registering its name. The USPTO then appealed to the Supreme Court, who agreed to decide whether adding “.com” to an otherwise generic term (that is, the word “booking”) counts as a protectable trademark.

In addition, the Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant review for any of them. We can expect news from this conference in the Court’s Orders list on Monday, November 4. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights. Box has been relisted SIX times since first appearing at a private conference on April 23, 2019.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law that prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law (and others like it in cities and states around the country) under the Supremacy Clause of the Constitution. The Justices have yet to discuss this case at a private conference.
  • Chiafalo v. United States. This case concerns the constitutionality of “faithless electors,” or members of the Electoral College who vote for a different presidential candidate than the one whom a majority of the voters in a state chose. The questions presented are (1) whether a state can dictate how an elector casts his/her vote and (2) whether a law that penalizes an elector for voting “faithlessly” violates the elector’s First Amendment rights. Chiafalo has yet to be discussed at a private conference.
  • Lilley v. New Hampshire. This case involves a challenge to a Laconia, NH city ordinance that prohibits a woman from publicly exposing her breast “with less than a fully opaque covering of any part of the nipple.” Three women charged with violating the ordinance challenged their convictions on the ground that, since the regulation applies to women but not to men, it violates the Fourteenth Amendment. The question before the Court is whether Laconia’s city ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The Justices first discussed Lilley at their October 1 long conference.
  • Thompson v. Hebdon. This case concerns a challenge to an Alaska state law that caps personal contributions to election campaigns at $500 per year. The Ninth Circuit upheld the $500 limit, reasoning that it was obligated to follow circuit precedent as opposed to the Supreme Court’s plurality decision in Randall v. Sorrell (2006). The question before the Court is whether Alaska’s $500-contribution-limit law violates the Free Speech Clause of the First Amendment. The Justices discussed Thompson at this conference.
  • City of Boise, Idaho v. Martin. This case involves two Boise, ID city ordinances that make it a misdemeanor to camp or sleep in public places within city limits. The Ninth Circuit held that the ordinances violate the Eighth Amendment when the city enforces them against the homeless. The question before the Court is whether generally applicable laws that criminalize public camping and sleeping violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Martin has yet to be discussed at a private conference.
The Week Ahead

Another busy week follows this one. The Court is off on Monday for Veterans’ Day. On Tuesday morning, at 9:30am, we can expect more orders from this Friday’s conference. Then the Court will hear oral arguments in its closely-watched, administrative law cases concerning the Trump administration’s push to wind down DACA (those cases are consolidated under DHS v. Regents of the University of California). I gave an overview of these cases in my term preview. The Court will also hear argument in Hernandez v. Mesa, a case about a U.S. border patrol agent who shot and killed a Mexican teenager across the U.S.–Mexico border. On Wednesday, the Court will hear oral arguments in Comcast Corp. v. National Ass’n of African American-Owned Media and Ritzen Group, Inc. v. Jackson Masonry, LLC. On Friday, the Court will meet for its weekly private conference.

Finally, it’s worth noting that the Justices may issue their first decision of the term within the next few weeks. Last year, the Court issued its first decision of O.T. 2018 on November 6 and its second on November 27. An early decision like this would be in one of the smaller cases already argued and probably would be unanimous, given the infancy of the Court’s term.

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