There are three very interesting cases before the Supreme Court in the next week. I’ve listed the three with a short synopsis below.
Wednesday, November 29th
16-402 CARPENTER V. UNITED STATES
QUESTION PRESENTED:
In this case, as in thousands of cases each year, the government sought and obtained the historical cell phone location data of a private individual pursuant to a disclosure order under the Stored Communications Act (SCA) rather than by securing a warrant. Under the SCA, a disclosure order does not require a finding of probable cause. Instead, the SCA authorizes the issuance of a disclosure order whenever the government "offers specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation."
18 U.S.C. § 2703(d).
As a result, the district court never made a probable cause finding before ordering Petitioner's service provider to disclose months' worth of Petitioner's cell phone location records. A divided panel of the Sixth Circuit held that there is no reasonable expectation of privacy in these location records, relying in large part on four-decade-old decisions of this Court.
The Question Presented is:
Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.
Monday, December 4th
16-534 RUBIN V. ISLAMIC REPUBLIC OF IRAN
QUESTION PRESENTED:
1. Under the original execution immunity provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602, et seq . (the "FSIA"), plaintiffs holding terrorism judgments against designated state sponsors of terrorism "faced practical and legal difficulties at the enforcement stage."
Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317-18 (2016). "[O]nly foreign-state property located in the United States and 'used for a commercial activity' was available for the satisfaction of judgments."
Id. at 1318. In 2008, Congress enacted 28 U.S.C. § 1610(g) to expand the availability of assets for postjudgment execution against the property of foreign state sponsors of terrorism, their agencies and instrumentalities.Id. at 1318 n.2.
The Seventh Circuit held below that section 1610(g) merely amends the existing attachment immunity provisions to enable terrorism judgment creditors to enforce their judgments against the foreign governments' instrumentalities that have been established as separate juridical entities. This holding conflicts with the Ninth Circuit's decision in Bennett v. Islamic Republic of Iran, 825 F.3d 950 (9th Cir. 2016), which held that section 1610(g) provides a freestanding attachment immunity exception, which in addition to enabling veil piercing, allows terrorism victims to attach and execute upon any assets of foreign state sponsors of terrorism, their agencies, or instrumentalities regardless of whether the assets are connected to commercial activity in the United States.
(1) The first question presented for review is:
Whether 28 U.S.C. § 1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether the assets are otherwise subject to execution under section 1610.
2. Section 1610(a) is another execution immunity provision of the FSIA. It enables execution upon "property in the United States of a foreign state ... used for a commercial activity in the United States" under certain specified conditions enumerated in the statute. The statutory text refers to the commercial use without respect to any particular actor.
The second question presented for review is:
Whether the commercial use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign's property located in the United States only when the property is used by the foreign state itself.
(1) Iran has filed a petition for a writ of certiorari challenging the Ninth Circuit's Bennett decision based upon the conflict with the Seventh Circuit's decision below as to the construction of section 1610(g). See Supreme Court Case No. 16-334.
Tuesday, December 5th
16-111 MASTERPIECE CAKESHOP V. CO CIVIL RIGHTS COMMISSION
QUESTION PRESENTED:
Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act ("CADA'') when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs.
The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips' speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips' cakes and the Commission's exemption of other cake artists who declined to create custom cakes based on their message.
This analysis (1) flouts this Court's controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits.
The question presented is:
Whether applying Colorado's public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
