This week’s orders and opinions in Plain English

By Lisa Tucker
on Mar 10, 2010 at 3:30 pm

Even though we’re only halfway through the week, it has already been an interesting week at the Court.

On Monday, the Court handed down two opinions in cases involving the Speedy Trial Act and attorney advice in bankruptcy proceedings.

Let’s start with Bloate v. U.S. You probably know that a criminal defendant has a right to a speedy trial, both under the Sixth Amendment (a provision of the United States Constitution) and under the Speedy Trial Act (a federal law enacted by Congress).  In Bloate, the Court had to decide just how “speedy” was speedy enough under federal law.  As Scott Street explained in his post on Tuesday, the Court invoked its justice sword in holding that time spent preparing pretrial motions can only be excluded from the 70 days allowed to bring a criminal defendant to trial if excluding the days from the day count serves the ends of justice.

Here’s what’s ordinary about Bloate:  The Court is called upon almost daily to interpret an act of Congress, or a federal law.  Many statutes contain ambiguous terms (What is a “father,” for example?  Or a “motor vehicle”? Or, as we will see below in my discussion of Milavetz, a “debt relief agency”?), and one of the functions of the court system is to interpret just what those terms mean.  When a federal statute is really ambiguous, the federal courts of appeals may disagree about what the statute means.  That’s generally when the Supreme Court will step in, because it wants to ensure that a federal statute is interpreted and applied the same way in every part of the United States.

Unusual in Bloate?  Well, eight circuit courts agreed on just how the Speedy Trial Act prohibited a criminal defendant from creating a delay to try to stop the speedy trial clock from ticking (two circuit courts disagreed). The Court rejected the interpretation of the majority of circuit courts, however, invoking what we call the “canons of construction” – or procedures for interpreting statutes.  The Court decided that, to give effect to a provision referring to excluding delays in order to serve the ends of justice, it had to read other provisions of the statute narrowly.  Why?  Because the canons of construction tell us that every word in a statute is supposed to mean something, so a court needs to construe a statute in a way that gives meaning to every word.

What will happen now?  Well, the statute is still pretty confusing, even for lawyers and courts who deal with it all the time.  In cases like this, where statutory language is quite unclear, one choice Congress has it to rewrite (“amend”) the statute.  It would almost certainly do so were it to disagree with the Court’s interpretation of the statute (remember Lilly Ledbetter and the fair-pay act subsequently named after her?), but it might even do so – in an effort to clarify for future litigants -  if it agreed with the Court’s interpretation.

In an interesting bankruptcy decision, Milavetz, Gallop & Milavetz v. United States, the Court held on Monday that lawyers could not advise their clients to incur more debt in bad faith, but they could do so in good faith.  For the Court, Justice Sotomayor explained that a lawyer could legitimately advise clients to go further into debt in anticipation of a bankruptcy if there was a valid reason to do so.  However, attorneys could not advise clients that they could incur unreasonable debt only to discharge it in bankruptcy; such a restriction on legal advice did not violate the First Amendment.  And, of course, attorneys could always discuss with clients the legal ramifications of any course of action – such a conversation would only run afoul of the law were the attorney affirmatively to advise the client to engage in bankruptcy abuse.

An interesting aspect of this case is how it ties into a concept I discussed yesterday , the Roberts Court’s tendency to decide issues narrowly.  The Court avoided finding a free speech violation – a holding which may have started a Constitutional snowball effect – and essentially based its decision on the rules that govern attorney ethics instead.  Because even the First Amendment has exceptions under which the government can limit speech when it has a substantial interest in doing so.  Avoiding bankruptcy fraud would seem to be such a substantial interest.

If you watched the morning news programs on Tuesday morning, you could not have missed mention of Snyder v. Phelps, a case which pits the rights of mourners at a fallen soldier’s funeral against picketers who seek to speak out against homosexuality at the graveside.  More broadly, the case asks whether private persons may be liable for emotional injuries to other private parties when exercising their First Amendment rights to free speech.  The Court granted cert. on the question on Monday; the case will be heard early in the 2010 Term (sometime next fall).

Also on Monday, the Court granted cert. on the issue of whether background checks of federal contractors at a NASA lab violate privacy rights or serve an important governmental interest. Finally, the Court agreed to hear a case involving the legal right to sue by parents whose children have been injured by vaccines.