The Court Is in Session - Part I

October brings with it so many good things: Playoff baseball (go, Cards!), hockey (go, Blues!), football (go, Packers!), brilliant fall colors, pumpkin everything…and for SCOTUS geeks like me, the beginning of a new term for the Court. Oral arguments for the October sitting began Monday and continued yesterday, with eight more slated to be heard next week. This term promises to include some controversial topics and fascinating decisions, both in terms of outcome and alignments among the justices. Following is a quick rundown of the cases heard Monday. We’ll have a separate rundown of Tuesday’s cases and follow that with an overview of what we can expect to see going forward.


On Monday, the Court heard oral argument in Kahler v. Kansas, a case involving the insanity defense. In 1995, Kansas abolished insanity as an affirmative defense, enacting a law that, instead, allows for a criminal defendant to assert that he was unable to form the requisite intent to commit the crime due to mental illness.  James Kahler shot and killed his estranged wife, her grandmother, and his two teenage daughters in 2009. Kahler was convicted of first-degree murder and sentenced to death. His sentence was upheld by the Kansas Supreme Court. Kahler contends that the Kansas law which prevented him from raising an insanity defense violated the due process clause of the Fourteenth Amendment and the Eighth Amendment’s prohibition on cruel and unusual punishment. Amy Howe over at SCOTUSblog (an invaluable resource for SCOTUS junkies) provided a thorough post-argument analysis here.  The transcript of the argument can be found here.

Next up was Ramos v. Louisiana, a case involving the question of whether the Sixth Amendment a) requires a unanimous verdict in a criminal case; and b) is incorporated to the states via the Fourteenth Amendment. This might not seem like an earth-shattering sort of thing. However, this case could shape up to be a game-changer.  At the heart of the dispute is the 1972 Supreme Court Case of Apodaca v. Oregon, which involved a divided court decision: four of the justices took the position that the Sixth Amendment does not guarantee the right to a unanimous verdict at all, while four others contended it guaranteed it both at the federal and the state level. Justice Lewis Powell split the difference and asserted that the Sixth Amendment guarantees a unanimous verdict in federal criminal cases but not in state cases.  Ramos, the defendant in the current case, was convicted of second-degree murder by a 10-2 jury verdict.  Louisiana is one of only two states that, prior to 2019, that followed the non-unanimity rule (Oregon being the other one.) That rule was repealed by Louisiana voters in 2018 and the unanimity requirement went into effect for all crimes committed on or after January 1, 2019. (The crime for which Ramos was convicted occurred in 2014.) What is truly fascinating about this case is that during the argument the liberal wing of the Court appeared to be pushing back the hardest against the defense position (which would require overruling Apodaca – possibly signaling concern about disregard for stare decisis and the “sanctity” of Roe v. Wade, particularly in light of Louisiana abortion cases looming.)  Catch a full analysis of the argument here and the transcript here.


Also on Monday, the Court heard argument in Peter v. NantKwest, Inc., a case involving the award of attorney fees for appeals of patent application denials. This one’s a bit on the drier side, but interesting nonetheless, since it involves a close look at the “American Rule,” which presumes that losing litigants should not be compelled to pay the winning side’s attorney’s fees. What’s unusual about this case is that it involves a process under Section 145 of the Patent Act which compels the party appealing the patent application denial to pay for the other side’s (i.e., the Patent & Trademark Office’s) “expenses” regardless of whether the appeal is successful or fails.  Until recently, “expenses” were thought to include only out-of-pocket expenses, such as copying fees and travel. The PTO has now interpreted that to include attorney fees and other attendant expenses. Ronald Mann’s analysis of the argument can be found here. The transcript is here.

Stay tuned for our next installment – a review of the cases heard by the Court yesterday.  (Talk about controversial!)


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