Cell Phones, Driving Directions and a Dressing Down from Justice Kennedy: SCOTUS Wraps Up OT 2016 Oral Arguments



We all knew this day would come… the final week of oral arguments at the U.S. Supreme Court for OT2016.

But do try to push through the tears and read this week’s Bloomberg BNA breakdown, because it was a tremendous week of arguments.

First up was No. 16-5294McWilliams v. Dunn, which took on new significance following state court stays of two of Arkansas’ “assembly-line” executions. The state, running up against “use by” dates for one of its execution drugs, scheduled eight executions over an 11-day period.

While some executions have gone forward (including one involving Justice Neil Gorsuch’s first recorded Supreme Court vote), Arkansas ran into a roadblock early on in the process. The state’s highest court stayed the first two executions until after the U.S. Supreme Court decided the McWilliams case.

At issue in McWilliams is whether an indigent defendant is entitled to a mental health expert that is independent of the prosecution. Although McWilliams was represented by the impressive Stephen B. Bright of the Southern Center for Human Rights in Atlanta, his prospects for a win following oral argument don’t look good.

That’s because even though the “money sentence”—according the Justice Elena Kagan—of the relevant precedent says that indigent defendants are entitled to “a competent psychiatrist who will assist in evaluation, preparation and presentation of the defense,” many justices seemed to think that could be satisfied by a neutral expert that worked for neither the prosecution nor defendant.

Bloomberg BNA’s Melissa Stanzione explains why here.

The justices considered yet another capital case with No. 16-6219Davila v. Davis. Many justices seemed similarly skeptical of the capital defendant’s claims here, including a claim of ineffective assistance of appellate counsel.

A little background first: “Once finalized, state convictions can’t usually be tested in federal court based on an alleged trial error,” Bloomberg BNA’s criminal law reporter Jessie DaSilva explained. “However, that trial error could be the basis of habeas relief if it is based on an ‘external’ error, such as actual innocence or ineffective assistance of trial counsel,” Jessie said.

Here, “Davila asked the high court to extend the exception to direct appeals claims,” Jessie said. “If successful, it would allow him to make his jury instruction argument in a new state appeal based on the external error that his direct appeals attorney was ineffective in failing to raise the argument on appeal,” she said.


Jessie described the oral argument as “circular.” Read why here.

Day two of oral arguments was … unusual. First, we learned that electronics aren’t strictly prohibited in the hallowed courtroom. That is, “so long as the holder is a justice,” Washington Post’s Robert Barnes said.

Justice Stephen G. Breyer was caught red-faced after his cell phone unmistakably went off during the first argument.

It was an “oversight,” the Supreme Court’s press office said, noting that he doesn’t usually take his phone into the courtroom.

Even more exciting than CellPhoneGate, day two was also personal jurisdiction day at the Supreme Court, as both cases involved the reach of state courts with regard to business defendants.

In one, No. 16-466Bristol-Myers Squibb Co. v. Superior Court of California, “pharmaceutical giant Bristol-Myers Squibb Co. wants the Supreme Court to toss several California cases relating to the company’s billion dollar blood thinner Plavix,” Bloomberg BNA’s Supreme Court reporter Kimberly Robinson (you know, me) explained. In the other, No. 16-405, BNSF Railway Co. v. Tyrrell, “railroad titan BNSF Railway Co. wants the court to throw out two workplace injury suits pending in Montana.”

Both point to the high court’s unanimous decision in Daimler AG v. Bauman, to say that the court should restrict the state courts’ ability to haul them into court. That result seemed likely. Read why here.

The final notable moment of day two of oral arguments came when Gorsuch interrupted Chief Justice John G. Roberts Jr. to inform him that, in fact, I-80 runs across Montana, not, as the Chief said, I-90.

“It's that geographical diversity,” the Chief quipped, referring to the fact that Gorsuch is the only current justice from the real west—California, of course, being excluded, per Justice Antonin Scalia.

But after a flurry of fact checking by Gorsuch’s diligent colleagues, he was forced to recant. “And, counsel, I – I must apologize. It's 90 across Montana,” Gorsuch later said.

“80 across Wyoming. I'm very sorry, Mr. Chief Justice,” Gorsuch continued. “Didn't I say 90?” Roberts said, proving that you should NEVER correct the Chief.

The Chief kicked off the last day of oral argument for OT 2016 *sniff, sniff* by informing the parties that he was giving them an additional five minute each. That was likely because the case, No. 15-1039Sandoz, Inc. v. Amgen Inc., involves the highly (read: tediously) technical Biosimilars Act.

Read more about the case here. Note that you probably shouldn’t operate heavy machinery while you read this one.

Finally, the federal government met with an indignant Supreme Court during No. 16-309Maslenjak v. United States.

The justices, particularly Roberts, seemed outraged by the government’s argument that it could strip citizenship from naturalized citizens for even the most inconsequential lie.

“The questions asked during the naturalization process are so broad that a naturalized citizen could be stripped of citizenship for failing to disclose that they once drove above the speed limit, Roberts said,” admitting that he himself has done this. He, of course, adding that he’d only done so “outside of the statute of limitations.” (Come on Chief, they never would have been able to prove jurisdiction… but whatever!)

That gave the government too much power, basically allowing them to denaturalize any naturalized citizen, Roberts said.

The government attorney got a dressing down from Justice Anthony M. Kennedy after suggesting that the result wasn’t that harsh because the person could always reapply for citizenship after a waiting period.

That argument demeans “the priceless value of citizenship,” Kennedy said. 

“You say, oh,” it just restores that person to their former status, Kennedy said. But “that’s not what citizenship means,” he said.

“You’re arguing for the government of the United States, talking about what citizenship is and ought to mean,” Kennedy chided Parker.

Yikes! Miraculously, the government attorney was able to continue, but it doesn’t look like he’ll get a win. Read why here.

With that, the Supreme Court wrapped up its oral arguments for the term. Of course, there’s still more work to be done before the term ends in June, as the court has dozens of opinions to hammer out.

Be sure to follow along as the Supreme Court wraps up its 2016 term with a free trial to United States Law Week.