Supreme Court (6/24/19) - 4 decisions, 3 CVSG's, 8 new grants (Scandalous trademarks case highlights today)

Today’s order list.

4 decisions this morning, 3 Calls for the Views of the Solicitor General, 8 new case grants (3 are bundled for one argument and 2 are bundled for another argument, so 5 new arguments scheduled).

For now, just listing the 4 decisions, will list the grants and CVSG’s in a subsequent post.

Holding : Title 18 U. S. C. §924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague.

Judgment : Affirmed in part, vacated in part, and remanded, 5-4, in an opinion by Justice Gorsuch on June 24, 2019. Justice Kavanaugh filed a dissenting opinion, in which Justices Thomas and Alito joined, and in which Chief Justice Roberts joined as to all but Part II-C.

I fully concur with this decision. This is just the latest in a series of cases that have overturned federal criminal law for unconstitutional vagueness.

Holding : Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of 5 U. S. C. §552(b)(4), the Freedom of Information Act’s Exemption 4.

Judgment : Reversed and remanded, 6-3, in an opinion by Justice Gorsuch on June 24, 2019. Justice Breyer filed and opinion concurring in part and dissenting in part, in which Justices Ginsburg and Sotomayor joined.

Holding : The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.

Judgment : Affirmed, 6-3, in an opinion by Justice Kagan on June 24, 2019. Justice Alito filed a concurring opinion. Chief Justice Roberts and Justice Breyer filed opinions concurring in part and dissenting in part. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.

This is the big case of the day. Very happy with the outcome. It is not the government’s job to enforce morality and they clearly can’t do so in violation of the First Amendment.

If you wish to know what the trademark in question is, follow that link, which is the Opinion of the Court, the trademark in question is right at the beginning. I cannot include it here as it would obviously constitute a filter bypass violation.

Holding : A plaintiff may not recover punitive damages on a maritime claim of unseaworthiness.

Judgment : Reversed and remanded, 6-3, in an opinion by Justice Alito on June 24, 2019. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer and Sotomayor joined.

The Supreme Court will be back on Wednesday (don’t know why they are skipping tomorrow) and I would expect 4 more decisions Wednesday and the final 4 on Thursday.

I will post on the CVSGs (one of which is in a very significant original jurisdiction case between Arizona and California) and on the new grants later.

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The petition for a writ of certiorari before judgment is denied.

Found that on today’s order list. There will be no quick resolution on the Trump tariff’s case. The Supreme Court denied certiorari before judgement. This case is out of the United States Court for International Trade, which means the United States Court of Appeals for the Federal Circuit has jurisdiction of the appeal. Once the Federal Circuit renders a judgement on appeal, the losing party can try again at the Supreme Court. Not surprising, the Supreme Court very rarely grants certiorari before judgement.

The three Calls for the Views of the Solicitor General:

Supreme Court docket file for Original Case 22o150, State of Arizona, Plaintiff v State of California.

This case concerns California’s aggressive extra-territorial tax assessment and tax enforcement regime, which alleged to violate due process.


Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

Supreme Court docket file for 18-1140, Avco Corporation, Petitioner v. Jill Sikkelee, Individually and as Personal Representative of the Estate of David Sikkelee, Deceased, et al.

Issue: Whether the Federal Aviation Act preempts state-law design-defect claims.

The 8 new grants from today:

The first 3 below are consolidated for arguments.

Issue : Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.

Issues : (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.

Issue : Whether a temporary cap on appropriations availability from certain specified funding sources may be construed, based on its legislative history, to abrogate retroactively the government’s payment obligations under a money-mandating statute, for parties that have already performed their part of the bargain under the statute.

The following 2 cases are consolidated for argument:

Issue : Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Issue : Whether the criminal alien bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.

Issue : Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.

Issue : Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

Issue : Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby .

A pretty good article on vague and Gorsuch. Congress isn’t doing their job and haven’t been.