WHAT WE'RE READING

The morning read for Friday, April 4

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:

• Supreme Court sides with truck driver who said CBD got him fired (Maureen Groppe, USA Today)
• Trump Lawyer Dean John Sauer Confirmed as Solicitor General (John Crawley, Bloomberg Law)
• Trump’s Pick to Argue at Supreme Court Made His Career in Culture Wars (Abbie VanSickle, The New York Times)
• Karen Read’s lawyers ask US Supreme Court to step in her case, arguing ‘double jeopardy’ (Alex Svenson & Emily Maher, WCVB5)
• The Supreme Court Precedent That Should Free Mahmoud Khalil (Brad Snyder, Slate)

RELIST WATCH

Limiting a defendant’s ability to confer with counsel during a murder trial

 The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Over the past couple of conferences, the Supreme Court has continued to clear out the rolls of relisted cases. Remarkably, the Supreme Court denied review without comment in the most recent newly relisted case, Escobar v. Texas, in which Texas conceded that erroneous DNA evidence had contributed to the defendant’s conviction for capital murder.

The court denied review on March 24 in Franklin v. New York, involving the right, guaranteed by the Sixth Amendment, of criminal defendants to confront witnesses against them. But Justices Samuel Alito and Neil Gorsuch, in separate opinions respecting the denial of certiorari, suggested that the court would need to revisit the landmark 2004 decision in Crawford v.Washington that narrowed the use of hearsay testimony in criminal trials.

WHAT WE'RE READING

The morning read for Thursday, April 3

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court appears divided over whether states can cut off Planned Parenthood funding (Lindsay Whitehurst, The Associated Press)
• Supreme Court hears case that could see more Planned Parenthood clinics closed (Nina Totenberg, NPR)
• Supreme Court seems to back Planned Parenthood in patient rights case (Ann E. Marimow, The Washington Post)
• Supreme Court Laments ‘Mini Epidemic’ of Shifting Arguments (Kimberly Strawbridge Robinson, Bloomberg Law)
• Man to plead guilty to attempted assassination of US Supreme Court Justice Kavanaugh (Andrew Goudsward, Reuters) 

OPINION ANALYSIS

Divided court approves civil RICO liability for injuries from CBD product

The Racketeer Influenced and Corrupt Organizations Act provides for federal criminal and civil penalties for harms from “racketeering.” Wednesday’s ruling in Medical Marijuana, Inc v. Horn, like so many of the court’s RICO decisions, involves the civil penalties.

Douglas Horn was fired from his commercial truck driving job after he ingested a product marketed as including only CBD (cannabidiol, which is completely legal) rather than THC (tetrahydrocannabinol, which continues to be illegal in many contexts) and failed a drug test. Justice Amy Coney Barrett’s opinion for a sharply divided court on Wednesday upheld liability for damages to a business or property that flow from personal injury, a win for Horn at this stage. The case now will return to the lower court.

OPINION ANALYSIS

Court tosses out lower-court ruling against FDA in flavored vape dispute

The Supreme Court on Wednesday largely upheld the Food and Drug Administration’s denials of two companies’ applications to sell flavored liquids for use in e-cigarettes. In a unanimous ruling, the justices threw out a ruling by the conservative U.S. Court of Appeals for the 5th Circuit holding that the FDA had improperly pulled a “regulatory switcheroo” when it gave the companies instructions that they followed but then ignored those instructions and denied authorization while imposing new requirements. In a 46-page ruling by Justice Samuel Alito, the court sent the case back to the court of appeals so that it could take another look at one aspect of the dispute – specifically, whether it made a difference that the FDA had changed its position and failed to consider marketing plans that the companies had submitted as part of their applications.

E-cigarettes, also known as vapes, are battery-powered devices that heat a liquid, which in turn produce an aerosol that the user inhales. E-cigarettes normally contain nicotine, the addictive ingredient released by the burning of a traditional cigarette, but without some of the other chemicals that are released when tobacco is burned.