The First Monday in October.

"We are not final because we are infallible, but we are infallible only because we are final'"
Justice Robert H. Jackson
Brown v. Allen, 344 U.S.443 (1953)

I first heard this quote not in law school but from the justice I clerked for on the Pennsylvania Supreme Court.  It was Justice Hutchinson's way of keeping his law clerks, and himself, a bit humble.  And when you sit on (or work for) the highest court in a jurisdiction, especially a major one like Pennsylvania--or the United States--it's a good reminder.

Whether this quote was in the minds of the U.S. Supreme Court justices as they started their October 2017 term today, I have no way of knowing.  But given how momentous this term will be--and every court observer of whatever political stripe is unanimous on that--I hope some version of Justice Jackson's quote made its way into their thoughts.  Here is some of what happened today.

The Court began the day by issuing a 75-page order covering both pending cases and certiorari and other petitions, the result of the "long conference" last Monday as well as ongoing business.  The Court denied 1,386 cert petitions and requests for various forms relief including habeas corpus.  

One of the cert petitions denied was Aksu v. California (which I was following since I posted these items on Facebook), which involved the standard of review for appeals from cases involving consent to a search. I thought (as did some others) that a split among the circuit courts would almost guarantee a grant. But it seems like the Court accepted California's argument: yes, there is a split in theory, but not in practice.  Consent is consent, and it doesn't matter if the appeals court reviews it for clear error (the court accepts the facts and record as presented and only looks for a clear error of law or fact) or de novo (the appeals court acts as a trial court and examines the record "as of new" (de novo)).  I have to confess that I was interested in this case because this very technical issue was left unresolved by one of our criminal law class's favorite cases by name: Schneckloth v. Bustamonte 412 U.S. 218 (1973). 

Such are cert petitions.  Few are granted, and the ones that are by and large really matter.  And today they heard oral argument in two of those.  The first was the employer/employee arbitration versus class action litigation which I focused on in my September 23 post.  The second was Sessions, Attorney General v. Dimaya, a case being reargued from the last term which turns on the technical issue of whether a portion of the federal criminal code incorporated into the Immigration and Nationality Act (INA), is unconstitutionally vague (the section had been held unconstitutionally vague in a criminal law context).  Is it also unconstitutionally vague as a grounds for removal under the INA?

We are off to a term that could impact multiple areas of the law for a long time to come. My next posts (barring breaking news) will be the remaining "big" arguments.


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