U.S. Supreme Court

Eugene Volokh and Ilya Shapiro, writing in the Wall Street Journal, say that they support same-sex marriage but that a discrimination case against New Mexico photography business owners who don't want to photograph same-sex wedding and commitment ceremonies would make bad law. The New Mexico Human Rights Commission, in a decision upheld by the New Mexico Supreme Court, found that Elane Photography is subject to state's antidiscrimination law and must accommodate the public. "Creators of expression have a First Amendment right to choose which expression they want to create," they argue.

The U.S. Supreme Court will decide whether to take up the case later this month.

When we get arrested, do police have the right to search phones without a warrant, Reason's Damon Root asks. Do warrantless cell-phone searches constitute unreasonable searches and seizures?

While it is constitutionally permissible for police to search arrestees, their possessions and the immediate vicinity around the arrest site without a warrant, "cell phones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?," Reason also asks.

The two cases the U.S. Supreme Court will hear are Riley v. California and United States v. Wurie.

USA Today reports on the U.S. Supreme Court oral arguments this week in a case that will shape the future of securities class actions in America: "The Supreme Court searched for a compromise Wednesday that would help businesses avoid some class-action lawsuits charging securities fraud without making them virtually extinct. Faced with the real prospect of overturning a 26-year-old precedent permitting class-action cases based on investors' trust in market prices, several justices asked whether it might be better to require that investors prove that the fraud affected the price. Four conservative justices previously had made clear their desire to modify or overturn the 1988 decision. That would take a huge burden off U.S. corporations but make class-action challenges more difficult to bring. During oral arguments in the case of Halliburton v. Erica P. John Fund, however, both Justices Anthony Kennedy and John Roberts appeared to be searching for a middle ground. Even Justice Antonin Scalia, an opponent of the court's earlier decision in Basic v. Levinson, mused about the court adopting 'Basic writ small.'"

TV broadcasters have gained an ally in the federal government in a U.S. Supreme Court case that could reshape the contours of copyright law and broadcast TV. Re/code reports that the Justice Department filed an amicus brief in which they argued that Aereo's transmission of free broadcast TV programming over the Internet violates copyright law. But the governmental lawyers said a ruling against Aereo wouldn't threaten technologies like cloud computing when involving the remote storage and streaming of legally acquired copies of copyrighted works, Re/code further reports.

The Associated Press reports on U.S. Supreme Court arguments held yesterday on how states evaluate mental disability in order to decide whether murder defendants can be executed. Execution of the mentally disabled is unconstitutional.

"Five justices, enough to form a majority, pointed repeatedly to the margin of error inherent in IQ and other standardized tests. They voiced skepticism about the practice in Florida and certain other states of barring an inmate from claiming mental disability when his IQ score is just above 70," AP also reports. The advocate for  not allowing inmates to be executed when their IQ scores are just above 70 conceded that a score of 76 would preclude an inmate from arguing mental disability.

The National Law Journal's Tony Mauro reports that the U.S. Supreme Court appears to be "mostly sympathetic" to the Environmental Protection Agency's climate-change regulation: "Any hope among industry advocates that the U.S. Supreme Court might ban Environmental Protection Agency regulation of greenhouse gases altogether went up in smoke, so to speak, during more than 90 minutes of spirited argument last week. For one thing, Chief Justice John Roberts Jr. and Justice Anthony Kennedy both suggested the court has some obligation not to ignore the court's 2007 precedent Massachusetts v. Environmental Protection Agency. That decision said the EPA did have authority to regulate greenhouse gases emitted by motor vehicles. For another, even Peter Keisler, the lawyer for five sets of private challengers to EPA regulation, acknowledged during the argument Feb. 24 that the EPA's mandate extended to stationary sources under other parts of the Clean Air Act — just not the part at issue in the case being argued."

Yale Law Professor Judith Resnik opined in the New York Times against Delaware's effort to fight against the growing market in private dispute resolution by allowing litigants to use Delaware's chancery judges for secret arbitrations if the businesses had at least $1 million at stake, paid $12,000 in filing fees and paid $6,000 per day: "The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that 'all courts shall be open,' the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes." A split Third Circuit ruled against the constitutionality of the program, and the Delaware Court of Chancery is seeking certiorari with the U.S. Supreme Court.

It's been reported before how Solicitor General Donald Verrilli Jr. told the Supreme Court no one had standing to challenge warrantless electronic surveillance because no criminal defendants had yet been caught by the program. Despite Verrilli's assurances to the court that defendants would receive notice if the evidence against them derived from warrantless surveillance, the Department of Justice was not giving any such notices. The Intercept notes that Verrilli himself might not have known at the time that the DOJ wasn't providing notice, and he successfully argued for a change in policy. But Dan Novack, writing in The Intercept, asks why the solicitor general has not yet corrected the record in the U.S. Supreme Court: " Lawyers have an ethical obligation to speak with candor to tribunals, especially when representing the government. Amazingly, Verrilli has managed to remain silent throughout this controversy. It’s past time we heard from him directly."

As the U.S. Supreme Court takes up the fraud-on-the-market theory underpinning most securities fraud class actions, the Wall Street Journal asks if this sort of class action will become an endangered species and if the "balance of power between companies and the lawyers who sue them" will be rebalanced.

Under the fraud-on-the-market theory, shareholders don't have to show a direct connection between the alleged fraud and their losses, WSJ reports. Instead, the theory is that stock proices reflect all relevant information, including fraudulent information.

Analysts predict that there may very well be five votes on the court to overturn 1988 precedent that approved the theory, WSJ also reports.

The Supreme Court did not grant certiorari in appeals over allegedly defective washing machines that accumulated mold, The Wall Street Journal reports. "The court's decision to stay out of the dispute marks a breather for justices who in recent years have issued a string of rulings disallowing class-action cases," WSJ notes. The Seventh Circuit and Sixth Circuit held that the lawsuits could be certified as class actions because they involved a uniform design defect.