Justices cut back FTC power to seek ill-gotten gains
By Mark Sherman
Associated Press
WASHINGTON (AP) — A unanimous Supreme Court last Thursday cut back the Federal Trade Commission's authority to recover ill-gotten gains, overturning a nearly $1.3 billion award against a professional race car driver who was convicted of cheating consumers through his payday loan businesses.
The high court's ruling takes away what the FTC has called "one of its most important and effective enforcement tools," used in recouping billions of dollars over the past decade.
Justice Stephen Breyer wrote in his opinion for the court that the provision of federal law that the FTC has relied on does not authorize the commission to seek or a federal court to order restitution or disgorgement of profits.
But Breyer noted that other parts of the Federal Trade Commission Act could be used to obtain restitution for consumers who have been cheated. "If the Commission believes that authority too cumbersome or otherwise inadequate, it is, of course, free to ask Congress to grant it further remedial authority. Indeed, the Commission has recently asked Congress for that very authority."
The acting FTC chairwoman, Rebecca Kelly Slaughter, issued a scathing statement in response to the decision. Slaughter said the court "ruled in favor of scam artists and dishonest corporations, leaving average Americans to pay for illegal behavior. With this ruling, the Court has deprived the FTC of the strongest tool we had to help consumers when they need it most."
She called on Congress "to act swiftly to restore and strengthen the powers of the agency so we can make wronged consumers whole."
The FTC accused Scott Tucker of Leawood, Kansas, of using his payday loan companies to deceive consumers across the United States and illegally charge them undisclosed and inflated fees.
Tucker is a former American Le Mans Series champion who, according to prosecutors, used proceeds from the lending business to finance a professional auto racing team.
In a separate criminal case, Tucker was sentenced in 2018 to more than 16 years in prison on fraud and other charges. A call to his lawyer, Paul C. Ray of Las Vegas, was not immediately returned.
Court moves away from leniency for minors who murder
By Jessica Gresko
Associated Press
WASHINGTON (AP) — The Supreme Court made it easier last Thursday to sentence minors convicted of murder to life in prison without the possibility of parole, a ruling that reflects a change in course driven by a more conservative group of justices.
In a dissent, a liberal justice accused her colleagues of gutting earlier decisions that said life without parole sentences for people under age 18 should be rare.
The current case, which involved a Mississippi inmate and a crime committed when he was 15, asked the justices whether a minor has to be found to be "permanently incorrigible," incapable of being rehabilitated, before being sentenced to life without parole.
In a 6-3 decision that split the justices along ideological lines, the court said no. The ruling followed more than a decade in which the court moved gradually toward more leniency for minors convicted of murder.
Justice Brett Kavanaugh, writing for the majority, said previous decisions only require a judge to consider "an offender's youth and attendant characteristics" before imposing a sentence of life without parole. Kavanaugh rejected a more demanding standard.
The "argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court's precedents," Kavanaugh wrote for himself and Chief Justice John Roberts, as well as Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett.
Justice Clarence Thomas agreed with the result but said he would have instead rejected outright a 2016 decision in favor of the juveniles.
The court's three liberal justices dissented, with Justice Sonia Sotomayor writing that the decision "guts" prior cases in favor of minors. Sotomayor called the decision an "abrupt break" and an "abandonment" of those cases. Sotomayor said that all the almost 1,500 juvenile offenders serving life without parole sentences wanted was "the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to ask for a second chance."
Beginning in 2005, the Supreme Court had concluded in a series of cases that minors should be treated differently from adults, in part because of minors' lack of maturity. That year, the court eliminated the death penalty for juveniles. Five years later, it later barred life-without-parole sentences for juveniles except in cases of murder. In 2012 and 2016 the court again sided with minors. The court said life-without-parole sentences should only be given to "the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."
Since that time, Justice Ruth Bader Ginsburg and Justice Anthony Kennedy, whose votes were key to those decisions, have been replaced by more conservative justices. Kavanaugh, the author of last Thursday's majority opinion and a former clerk to Kennedy, replaced him on the court. Kennedy had been the author of the decisions favoring juveniles in 2005, 2010 and 2016.
In a statement, Kymberlee Stapleton of the California-based Criminal Justice Legal Foundation called the decision a "victory for the families of victims murdered by juveniles."
But Heather Renwick, the legal director of the Campaign for the Fair Sentencing of Youth, said the decision was out-of-step with national trends and would "result in uneven and arbitrary imposition of life without parole on children." She noted that the number of states that ban life without parole sentences for minors has grown significantly in the last decade. Twenty-five states and the District of Columbia bar life without parole sentences for youth.
Both groups had weighed in on the case on opposite sides.
The specific case before the justices involved Mississippi inmate Brett Jones, who was 15 and living with his grandparents when he fatally stabbed his grandfather. The two had a fight in the home's kitchen after Bertis Jones found his grandson's girlfriend in his grandson's bedroom. Brett Jones, who was using a knife to make a sandwich before the fight, stabbed his grandfather first with that knife and then, when it broke, with a different knife. He was convicted and sentenced to life in prison without the possibility of parole.
Brett Jones had argued he is not "permanently incorrigible" and should therefore be eligible for parole. Mississippi argued that the Eighth Amendment doesn't require that Jones be found to be permanently incorrigible to receive a life-without-parole sentence, just that Jones' status as a minor when he committed his crime be considered.
In a statement, Mississippi's Attorney General Lynn Fitch said the state was pleased. "At its core, this case is about a state's ability to craft the laws and procedures that reflect the will of its people," she wrote. Jones' attorney declined to comment.
The case is Jones v. Mississippi, 18-1259.
David faces Goliaths over pipeline
By Mark Sherman and Jessica Gresko
Associated Press
WASHINGTON (AP) — On one side of an upcoming Supreme Court case over a proposed natural gas pipeline in New Jersey are two lawyers with more than 250 arguments between them. On the other is Jeremy Feigenbaum, a lawyer for New Jersey who will be making his first Supreme Court appearance.
It may be the greatest numerical mismatch in the history of the high court — a David argues with Goliaths story (although this David comes with millions of dollars a year in earnings potential).
Justice Department lawyer Edwin Kneedler will be making his 148th argument. Kneedler, 75, had around 30 Supreme Court arguments under his belt by the time Feigenbaum, 32, was born.
Paul Clement, 54, the former top Supreme Court lawyer for the Bush administration, will be arguing his 106th case.
They are asking the Supreme Court to rule that private gas companies' use of the federal government's power of eminent domain to acquire property extends to parcels owned by a state.
Feigenbaum, a native of New Jersey and the tate solicitor, persuaded a three-judge appellate panel to rule that states could not be compelled to give up their land. At issue is a roughly
120-mile pipeline that would run from northeastern Pennsylvania to central New Jersey.
Although it's his first time arguing, Feigenbaum is familiar to the court. He worked for a year as a law clerk to Justice Elena Kagan in 2015-16.
Co-workers from that year described him as an outstanding lawyer whose age belies his legal wisdom. "Jeremy has sort of risen as quickly as one possibly can in the legal bar. You can't work with Jeremy and not recognize that he is exceptionally talented. ... He's one of the most creative and persuasive advocates I know, both in writing and orally. I think that's how he became one of the youngest state solicitors in the country," said Yaira Dubin, a former Kagan law clerk who first met Feigenbaum at Harvard Law School.
Thomas Fu shared an office with Feigenbaum at the Supreme Court, where they talked about high court cases virtually nonstop for a year. "I think Jeremy will be right up with them in terms of quality," Fu said.
Clement filed the Supreme Court appeal that the justices are hearing, via telephone because of the coronavirus pandemic. He and Feigenbaum overlapped briefly at the Kirkland and Ellis law firm. "Jeremy is a terrific lawyer, and I was happy to play a small part in getting him his first Supreme Court argument," Clement said in an email.
——
On rare occasions, determining who will argue a case can come down to flipping a coin, or fishing a name out of a bowl.
That's how the court's clerk resolved an impasse over who would represent the position of 17 Native American tribes last Monday in a case about coronavirus relief money.
Sixteen tribes were being represented by lawyer Riyaz Kanji, a former Supreme Court law clerk who last year won a major Indian Country case before the court. The other choice was Jeffrey S. Rasmussen, who represents the Ute Indian Tribe and would be making his first argument. Each side wanted its lawyer to argue. Rasmussen asked that each group get equal time. The court's answer: no. The week before, the court gave the parties two final hours to work things out themselves.
They failed.
So with less than three days until argument, the court's clerk got the parties on the phone. He told them he would put the name of each tribe on a slip of paper, put the slips in a bowl and pull one out. The lawyer that represented that tribe would argue. Against the odds, the tribe's name on the paper that got pulled: the Ute. Rasmussen got his first argument.
Details were confirmed by participants in the process. Indianz.com first reported on the disagreement over who would argue.
But in another case being argued this month, a lawyer willingly passed up his first chance to step to the virtual lectern and address the justices.
American Civil Liberties Union lawyer Witold J. Walczak had been scheduled to make his first Supreme Court argument this Wednesday on behalf of a high school student who was suspended from cheerleading activities for a profane Instagram post she made outside of school.
After some reflection, Walczak stepped aside in favor of David Cole, the ACLU national legal director who has argued several cases.
"I'm a trial lawyer with some successful circuit work. This case is too important to risk a novice Supreme Court oralist," Walczak said in an email. "After I overcame my ego, it was an easy decision."
___
Seven cases remain to be argued in April and May, but could the justices be suffering from remote argument fatigue?
After spending more than two and a half hours on the phone last Wednesday hearing two cases, Chief Justice John Roberts was ready to hang up. "Thank you counsel. The case is
submitted," Roberts said, using the words he does to end every case.
Trouble was, Roberts had forgotten to give one of the lawyers arguing in a patent case the customary opportunity to say a last few words.
It wasn't the only time this week that the justices seemed ready to wrap things up early. The court has spent more than a year hearing arguments by phone because of the pandemic.
During arguments last Tuesday, the three most junior justices at one point passed on their opportunities to ask questions.
"I have no questions at this time," Justice Neil Gorsuch said.
"No additional questions," Justice Brett Kavanaugh said.
"None from me either," concluded Justice Amy Coney Barrett.
That meant arguments in that case lasted just 48 minutes, well below the allotted hour.
The following day, Roberts quickly corrected his mistake. "Oh. No? What? Oh, I'm sorry, Mr. Hochman, you have rebuttal. ... Excuse me," he said, giving lawyer Robert Hochman the chance to wrap up.
"Thank you, counsel," Roberts said when Hochman was done. "Now the case is submitted."
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