Today the Supreme Court began its first of two argument weeks in November. It’s going to be an interesting week.
The first Monday argument was Zivotofsky v. Kerry, which will resolve the constitutionality of a federal statute that requires the Secretary of State to identify an American citizen’s birthplace in Jerusalem as “Israel.” The Administration argued that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.” The second argument, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, addresses a circuit split on the issue of whether a suit under 15 U.S.C. § 77k requires that a false statement only be objectively wrong, or whether the speaker believe it to be wrong.
Tuesday’s highlight is Department of Homeland Security v. MacLean (whether statutory protections for whistleblowers extend to an employee who intentionally discloses Sensitive Security Information) followed by Jesinoski v. Countrywide Home Loans (whether a rescission deadline for the Truth in Lending Act is satisfied by notice to the creditor or the filing of a lawsuit).
On Wednesday, the Supreme Court turns its attention to not-so-rampant criminality. The first argument will be in Yates v. United States, which involves a literal red herring (actually, several). The issue is whether the anti-shredding provision of the Sarbanes-Oxley Act of 2002 (passed in the wake of the Enron scandals) which forbids destruction of a “tangible object” with intent to affect a government investigation. This is a statutory interpretation case and the defendant is raising issues of constitutional avoidance and lenity in addition to the principal arguments. As Richard Re points out, there may be a reprise of some of the considerations raised earlier this year by the majority opinion in Bond v. United States. You can also find Orin Kerr’s preview of the arguments here.
Immediately following Yates, the Court will hear argument in Johnson v. United States, about whether mere possession of a short-barreled shotgun qualifies for sentencing enhancements as a “violent felony” under the Armed Career Criminal Act. In this case, the defendant had previously been convicted for possession of a short-barreled shotgun in violation of Minnesota state law (a crime that most states do not recognize). This offense was one of three priors that increased his statutory sentencing range from a maximum of 10 years in prison to a mandatory minimum of 15 years and maximum of life imprisonment.
Stay tuned for more as the week goes on!