Bench Memos

This Week at the Supreme Court

This week the Supreme Court comes back from its hiatus, holding three days of argument and (probably) issuing a decision on Monday about whether it will hear the HHS mandate cases (the most famous of which is Little Sisters of the Poor et al. v. Burwell).

Monday morning’s first argument, Foster v. Chatman, is a death penalty case in which post-trial proceedings revealed that the prosecutor struck all black jurors during jury selection after marking each of them on a list as “B#1,” “B#2,” and so forth, gave the trial court contradictory reasons for the strikes, and even argued in closing that the jury should give a death sentence to “deter other people out there in the projects.” The Court will determine whether the lower courts clearly erred in finding that the prosecutors’ peremptory strikes were not racially discriminatory in violation of Batson v. Kentucky (1986).

After that, the Court will turn to the constitutional doctrine of standing in Spokeo, Inc. v. Robins, which is about whether Congress can create standing by simply declaring a legal right that does not require proof of an actual injury to the plaintiff. This is one of the Term’s most important cases because the answer could have vast implications for environmental, qui tam, and privacy litigation.

On Tuesday, the Court will examine two poorly-drafted federal criminal laws, first addressing a circuit split in Lockhart v. United States about the meaning of the federal child pornography laws, then turning in Torres v. Lynch to whether a statute with a federal jurisdictional element can be said to “describe” a state law not containing that element.

Finally, on Wednesday the Court will consider two civil procedure cases. In Shapiro v. McManus, a single federal district judge dismissed a lawsuit challenging Maryland’s apportionment plan, even though the law generally requires such suits to be heard before a three-judge panel. In an interesting twist, both the conservative group Judicial Watch and the Virginia State Conference of the NAACP filed amicus briefs in support of the parties challenging the single-court decision. After that, in Bruce v. Samuels, the Court will consider the caps on monthly filing fee installment payments by prisoners who file more than one civil case or appeal in forma pauperis.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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