It has been more than 65 years since Cuba’s communist government came to power and confiscated large swaths of assets owned by U.S. businesses in Cuba. On Monday, the Supreme Court will hear oral arguments in a pair of cases brought by two of those U.S. businesses, which are seeking to recover those decades-old losses under a 1996 law that targets the Cuban regime. The law at the center of both cases is the Cuban Liberty and Democratic Solidarity Act, also known as the LIBERTAD Act or as the Helms-Burton Act, after its sponsors. Title III of the Helms-Burton Act allows U.S. nationals to bring lawsuits in federal court against anyone who “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959.” Another provision of the law gives the president the power to suspend the right to bring a lawsuit when he believes that doing so is “necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.” Presidents repeatedly suspended the right to bring a lawsuit until President Donald Trump in 2019 opted not to renew the suspension. The first case on Monday, Havana Docks Corporation v. Royal Caribbean Cruises, was filed in Florida in 2019 against four cruise lines – Royal Caribbean, Norwegian, Carnival, and MSC. Havana Docks, a U.S. company, alleged that between 2016 and June 2019 the cruise lines had trafficked in property that had belonged to Havana Docks – specifically, the company’s right to use and operate the Havana Cruise Port Terminal, which the Cuban government confiscated in 1960. A federal district judge in Miami entered judgments of over $100 million against each of the four cruise lines. The cruise lines then appealed to the U.S. Court of Appeals for the 11th Circuit, which – by a vote of 2-1 – reversed. In his opinion for the majority, which was joined by Chief Judge William Pryor, Judge Adalberto Jordan pointed to what he characterized as “Havana Docks’ limited property interest” in the use and operation of the docks, which was only intended to last until 2004, well before the “alleged trafficking by the cruise lines” occurred. “We do not believe,” Jordan concluded, “that Congress, in enacting Title III, meant to convert property interests which were temporally limited at the time of their confiscation into” complete and permanent property interests “such that the holders of such limited interests could assert trafficking claims through what Buzz Lightyear called ‘infinity and beyond.’” Judge Andrew Brasher disagreed, calling the majority’s decision “counterfactual.” “Nothing in the statute,” he wrote, “requires that a claimant establish that, absent the confiscation, it would have a current, present day property interest in its stolen property.” Havana Docks asked the Supreme Court to weigh in, which it agreed to do last year. In its brief on the merits, the company emphasized that it “built, owned, and operated Havana’s dock facilities pursuant to promises that it could recover its costs by operating the docks for at least a 99-year period, anticipated to end in 2024 if not extended,” with the additional promise from the Cuban government that it would receive compensation for “the full value of those facilities” if the docks were seized. Between December 2015 and June 2019, the company wrote, the four cruise lines between them brought more than 1 million tourists to the docks in Havana. For that, Havana Docks said, the cruise lines paid the Cuban government more than $130 million, while taking in more than $1 billion. Havana Docks, it stressed, received nothing. Havana Docks contended that the text of the Helms-Burton Act “should make this an easy case.” The act, it wrote, creates liability for trafficking in confiscated property to anyone – such as Havana Docks – who owns a claim certified in 1971 by the Foreign Claims Settlement Commission, a government agency set up to hear claims against foreign governments. The interests of U.S. companies like Havana Docks, it said, “remain ‘property which was confiscated’ because Cuba stole them, and Title III’s protections continue from enactment to this day and beyond until U.S. nationals’ claims are satisfied.” By contrast, Havana Docks wrote, the rule established by the court of appeals “provides only fleeting and incomplete protection for U.S. nationals’ claims.” “Nothing in the Act’s text or intended operation requires the claimholder to prove it would have possessed a present interest in the property when trafficked,” Havana Docks contended. To the contrary, it argued, “‘[t]he text of the statute says that the trafficking must occur when a plaintiff “owns the claim,” not when the plaintiff would have owned the property.’” The Trump administration, which filed a “friend of the court” brief supporting Havana Docks, echoed the company’s arguments. It told the justices that when Congress passed the Helms-Burton Act, the commission had already certified claims for many interests confiscated in Cuba, “though the underlying property interests often would have expired. Yet under the court of appeals’ analysis, the right of action for those claim owners would have ceased to exist before Title III was ever adopted. It is implausible,” U.S. Solicitor General D. John Sauer wrote, “that Congress expressly included such interests within the statute while simultaneously precluding any suit based on the existing claims.” In their brief, the cruise lines responded that “[e]veryone on this side of the bay agrees” that Havana Docks “should get paid for what was taken from it.” The problem, the cruise lines argued, is that the company is seeking “to recover—multiple times over—for the loss of property rights it never owned from entities that did not visit the property until years after the concession expired for purposes unrelated to HDC’s” right to use the property.   For the cruise lines, the answers to two key questions determine whether a company can recover under this provision of the Helms-Burton Act: first, what property interest did the Cuban government take from the plaintiff; and did the defendant traffic in that confiscated property interest? Here, the cruise lines argued, both answers lead to the conclusion that Havana Docks cannot seek damages from the cruise lines. As an initial matter, the property interest that Havana Docks owned was a narrow one: the non-exclusive right to run cargo operations at the port of Havana until 2004. After that, the cruise lines said, Havana Docks “simply had no entitlement to profit from use of the docks for cargo services—confiscation or not.” Moreover, the cruise lines continued, their use of the docks from 2016-2019 to load and unload passengers could not have infringed on Havana Docks’ property interest or violated Title III. The cruise lines pushed back against Havana Docks’ suggestion that the dispute effectively hinges on the FCSC’s certification of Havana Docks’ claim back in 1971. Although the Helms-Burton Act “assigns FCSC claims a critical role,” they acknowledged, “Congress did not create liability for trafficking in FCSC claims; it created liability for trafficking in confiscated property itself.” And in any event, the cruise lines continued, the claim that the FCSC certified specifically recognized that the Cuban government had confiscated a limited property interest – “‘a concession for the construction and operation of wharves and warehouses in the harbor of Havana,’ which was ‘to expire in the year 2004.’” “No one would have or even could have intervened in those proceedings on the theory that, someday in the future, they would be a defendant under a future statute.” The second case slated for argument on Monday, Exxon Mobil v. Corporacion Cimex (Cuba), stems from the Cuban government’s confiscation in 1960 of oil and gas assets – including a 35,000-barrel-per-day refinery and more than 100 service stations – belonging to subsidiaries owned by Exxon (then known as Standard Oil). Exxon has never received any compensation for that confiscation. Exxon brought a lawsuit in 2019 in federal court in Washington, D.C., under Title III of the Helms-Burton Act against three entities owned by the Cuban government, contending that they violated the law by trafficking in confiscated property owned by Exxon – by (among other things) extracting, importing, and refining crude oil, and operating service stations using property that had been owned by the Exxon subsidiaries. The Cuban companies asked the federal district court to dismiss the case, contending that they were shielded from suit under the Foreign Sovereign Immunities Act, which generally bars lawsuits in U.S. courts against foreign governments and their “agenc[ies] and instrumentalit[ies].” U.S. District Judge Amit Mehta ruled that the Helms-Burton Act does not itself trump the FSIA; instead, he wrote, Exxon would have to show that an exception to the FSIA applied. The FSIA’s “expropriation” exception, which allows lawsuits to go forward in cases involving property rights taken in violation of international law when there is a connection between the defendant, the expropriated property, and some kind of commercial activity in the United States, did not apply, Mehta concluded. However, Mehta continued, the FSIA’s “commercial activity” exception, which allows lawsuits that are (among other things) based on a foreign act taken in connection with a commercial activity by a defendant outside the United States that caused a direct effect in the United States, did apply to one of the Cuban companies because of its operation of gas stations in Cuba that process money transfers from U.S. residents to Cuba and sell products imported from the United States. A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed that the FSIA generally bars lawsuits against Cuban state-owned companies in U.S. courts, so that Exxon needed to show that an exception to the FSIA applied, and that the expropriation exception does not apply. But in an opinion by Chief Judge Sri Srinivasan, the majority sent the case back to the district court for another look at whether the Cuban company’s money transfers and sales of U.S. goods at its gas stations have effects in the United States “and whether the effects are sufficiently ‘direct.’” Senior Judge Raymond Randolph dissented. He would have held that it did not matter whether any of the exceptions to the FSIA applied because “Title III, considered alone, deprives the Cuban defendants of immunity from suit.” Exxon went to the Supreme Court, which agreed last year to take up its case. Before it can withdraw sovereign immunity, the company acknowledged, “Congress must speak clearly.” But the text of Title III of the Helms-Burton Act does exactly that, Exxon wrote, by specifically authorizing “suits against ‘any agency or instrumentality of a foreign state.’” Less than three years ago, in Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Exxon continued, the Supreme Court held that Congress waives sovereign immunity when it “creates a cause of action that expressly authorizes suits for money damages against federal or state governments.” The same principle applies to foreign governments in the Helms-Burton Act, Exxon insisted: Title III “authorizes damages actions against ‘any person,’ expressly defined to include ‘any agency or instrumentality of a foreign state.’” It is notable, Exxon added, that the same Congress that enacted the law at issue in Kirtz passed Title III. Moreover, the company continued, quoting the court, “Congress does not expressly ‘authorize a suit against a sovereign with one hand, only to bar it with another.’” Title III contains other clues that it trumps the general presumption against sovereign immunity created by the FSIA, Exxon wrote. For example, several provisions presume that “plaintiffs will sue Cuban defendants and win ‘judgment[s] against an agency or instrumentality of the Cuban Government.’ Such ‘judgments’ of course will not arise unless plaintiffs can obtain jurisdiction.” Finally, Exxon concluded, the purpose of Title III was “to provide a ‘fully effective’ judicial remedy for Americans whose property was seized by the Castro regime and is still being exploited by Cuban state-owned enterprises.” If those U.S. companies must satisfy an exception to the FSIA before they can go to court, Exxon argued, it “would legally bar many claims and would erect near-insurmountable practical barriers for most of the rest.” The Trump administration filed a “friend of the court” brief in which it agreed with Exxon that “[p]laintiffs may sue Cuban agencies and instrumentalities under Title III of the LIBERTAD Act without separately satisfying an exception to foreign sovereign immunity in the FSIA.” Sauer told the justices that “President Trump has determined that Title III suits are an invaluable foreign-policy tool. This Court should reverse the judgment below and allow Title III to work as Congress intended—to promote accountability for the Cuban government’s unlawful expropriations by exposing its agencies and instrumentalities to suit for trafficking in expropriated property, thus depriving that government of its ill-gotten gains.” The Cuban companies, urging the court to leave the D.C. Circuit’s decision in place, agreed that “Helms-Burton is far-ranging legislation with ambitious goals,” including “political change in Cuba and compensation for U.S. nationals who lost property there.” But in enacting Title III, the companies said, “Congress provided a cause of action, not a guarantee of success.” One problem with Exxon’s argument that Title III eliminates the FSIA’s general presumption of immunity, the Cuban companies argued, is that it does not distinguish between companies owned by Cuba and those owned by other foreign countries – so that Title III would also strip other state-owned companies of immunity from suit. Moreover, the Cuban companies continued, Title III’s broad definition of “trafficking” – which includes the use of confiscated property, commercial activities that use or benefit from confiscated property, or profiting from trafficking by someone else – would “easily reach” companies owned by other foreign countries beyond Cuba. Indeed, the Cuban companies suggested, companies owned by myriad countries – ranging from Argentina and Brazil to China and Singapore – “are commercially engaged with Cuba and therefore exposed to Title III lawsuits.” Nor does the Supreme Court’s decision in Kirtz, the Cuban companies argued, lead inescapably to the conclusion that Congress intended to supplant immunity under the FSIA with Title III. Instead, it “is limited to the common-sense notion that Congress does not enact ‘dead-letters,’ statutory causes of action dead on arrival,” the companies wrote. But in this case, even when Title III and FSIA are read together, there are still opportunities for companies whose properties were confiscated to bring lawsuits in U.S. courts, if they can satisfy either the expropriation exception or the commercial-activity exception. “Retaining FSIA immunity would thus not render meaningless application of the cause of action to instrumentalities because they enjoy only restrictive, not absolute, immunity.” Finally, the Cuban companies contended, history shows that if Congress had wanted to change the immunity that foreign countries and state-owned companies enjoy, it would have done so by expressly amending the FSIA. “The FSIA’s immunity from suit provisions have been amended fifteen times, its execution immunity provisions twelve,” the Cuban companies stressed. Exxon and the federal government, the Cuban companies wrote, “are free to ask Congress for an amendment creating a Title III immunity exception.” Indeed, they noted, such an amendment was proposed for Title III cases but “was withdrawn after strong Administration objections.” The post Supreme Court to hear arguments on confiscations by Cuban government appeared first on SCOTUSblog.

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law. Today’s column is my busman’s holiday project: providing nerd-like numbers and information focused solely on Supreme Court cases that address criminal law issues. This is especially relevant given that the court has now posted its calendar for the final argument session of the 2025-26 term, with oral arguments to take place from April 20-29. And the court will also begin issuing more “headline” opinions this coming Friday. Aside from boring civil cases like birthright citizenship or firing a governor of the Federal Reserve , we are awaiting some big criminal law decisions. And some hugely significant criminal law cases still have oral arguments upcoming (there will be three two-week oral argument sessions at the end of February, March, and April). By my count, of the 23 cases set for argument over the next two months, five of the cases (22%) are “pure” criminal law, while another six cases are what I categorize as related to criminal law. This is about average: as I summarize for the American Bar Association every August, a substantial percentage of cases that the court hears every term are CLAR (“criminal law and related”). This year it will be over 50%; by my characterization, about 29 of the 57 cases that will be argued this term (34 already argued and 23 still to come) are CLAR. Argued criminal law cases whose decisions we are now awaiting The Supreme Court’s published decisions tend to come out – but not always – roughly in the order they have been argued. That is, published decisions in cases argued earliest in the term tend to come sooner (even if still months after their fall arguments – remember, the term officially starts in October and by tradition all argued cases are decided by the end of June or early July). Cases argued last fall were briefly summarized in my argument previews for October, November and December. By this uncertain measure, a decision in Villareal v. Texas could be coming this Friday. The case was argued back on Oct. 6 and was the first criminal law case argued this term. The question is how far a trial judge can go in ordering a defendant who is in the middle of testifying not to discuss his testimony during an overnight recess, without infringing the defendant’s Sixth Amendment right to the assistance of counsel. Although it is not common for criminal defendants to take the stand – and the Fifth Amendment states they do not have to – this decision will have significant implications for criminal litigators at every level. Three criminal law sentencing cases that were argued last fall also await decision. Fernandez v. United States and Rutherford v. United States present important, and slightly different, questions for application of the federal First Step Act,  a statute permitting an early “compassionate release” for inmates in some cases, enacted under the first Trump administration. I’d expect these decisions to be issued at the same time. Meanwhile, Rico v. United States presents an interesting question about whether time periods should be excluded from statutory limitations periods when a defendant has “absconded” from parole or other non-prison supervision. These three sentencing cases also seem like good candidates for this Friday’s opinion session. But perhaps the most significant criminal case still awaiting decision from last fall is Hamm v. Smith, argued on Dec. 10. The issue there is how lower courts should evaluate whether a defendant sentenced to death has a mental disability that immunizes him, under the Eighth Amendment and Atkins v. Virginia, from execution. Changes in the court’s membership since Atkins was decided in 2002 could signal, as Jordan Steiker has explained on SCOTUSblog, “a major inflection point in the court’s death penalty jurisprudence,” even as death sentence verdicts (but not executions) appear to be declining. This decision could be issued soon, but might also be the kind of hotly disputed “blockbuster” decision that the court seems to hold (without saying so) until near the end of the term. (There are other significant criminal-law-and-related cases argued more recently and still awaiting decision, such as the “fear of persecution” immigration case of Urias-Orellana v. Bondi. Those cases will have to await a future column.) Upcoming spring arguments in criminal cases Now I will give brief previews of five “pure” criminal law cases scheduled for argument over the next two months. Another six cases are related to criminal law – such as two cases that will be important, as Kelsey Dallas has explained, for the current deportation “surges” against undocumented immigrants – but space requires that I hold off more than a brief mention of them here. (For those interested, those two immigration cases are Noem v. Al Otro Lado, scheduled for argument on March 24, and Bondi v. Lau, scheduled for argument on April 22.) We begin with United States v. Hemani, which will be argued on March 2, and is an important Second Amendment case. Hemani requires analysis of a long-standing federal statute that criminalizes, among many other things, firearm possession by anyone “who is an unlawful user of or addicted to any controlled substance.” As I explained in my mid-term update last month, the parties still appear to dispute whether Hemani’s prosecution (and this case) under that specific statutory provision applies only to his regular marijuana use, or to all controlled substances. The government also seeks to have the court interpret the statute, non-textually, as limited in application to only “habitual” users. Oral argument will likely involve a broad-ranging discussion of how the court’s recent Second Amendment “history and tradition” theory should play out in this case-specific context. And Hemani is one of two important Second Amendment cases pending this term, the other being Wolford v. Lopez, addressing a Hawaii state law, that was argued last month. Hunter v. United States is scheduled for argument the next day, March 3. As professors Nancy King and Michael O’Neill explained two decades ago, appellate review of criminal sentences has become common over the past 50 years, as “the glue” to hold together determinate (that is, largely non-discretionary) criminal sentencing “guidelines” systems. In other words, appellate review of criminal sentences expanded to help ensure consistency between different judges and jurisdictions for sentences imposed on similar criminal offenders. However, given the largely unequal bargaining power between prosecutors and charged defendants, prosecutors soon began to require broad “appeal waivers” from defendants in plea bargains; that is, defendants are now commonly required to agree that they will not file an appeal of their conviction, saving the government resources in exchange for less severe charges or sentences. Hunter presents questions of how to interpret and apply such waivers. (In 2017, the American Bar Association adopted some detailed guidelines for prosectors and defense attorneys on the subject.)  In Hunter, the government seeks a “no exceptions whatsoever” interpretation, even when the sentencing judge later says “you have a right to appeal” (as Federal Rule of Criminal Procedure 32(j)(1) is often read – or misread? – to require judges to do). In contrast, Hunter argues that standard contract-interpretation doctrine supports exceptions to such waivers in unanticipated situations, and that in any case if the prosecutor does not object to a “you have a right to appeal” judicial statement then the government has waived reliance on the prior appeal waiver. Lisa Blatt, representing Hunter, argues with characteristic flourish that “making even the most egregious punishments categorically unreviewable does our legal system a disservice.” This case is especially pertinent because a multitude of “splits” about how to interpret and apply criminal appeal waivers have developed among the various federal circuit courts. A divided Supreme Court has previously noted the practice of appeal waivers in the 2019 case of Garza v. Idaho, but split 6-3 as to the meaning of broad appeal waivers. Specifically, the majority wrote that “no appeal waiver serves as an absolute bar to all appellate claims” – though Justices Clarence Thomas, Samuel Alito and Neil Gorsuch vehemently disagreed. Hunter thus presents yet another instance of deciding whether recent changes in the court’s membership will shift the meaning of precedent. I expect this oral argument to be full of heat – and hopefully some light.    Abouammo v. United States is scheduled for argument on March 30. Section 2 of Article III of the Constitution provides that “[t]he Trial of all Crimes … shall be held in the State where the said Crimes have been committed.” Similarly, the Sixth Amendment’s “vicinage clause” says that “in all criminal prosecutions,” the “trial” shall be by a jury “of the State and district wherein the crime shall have been committed.” In this case, Amhad Abouammo emailed false documents from his home in Washington state to FBI agents he knew were from San Francisco. Although Abouammo’s conduct occurred in the district of Washington, he was tried in a California federal court. In affirming Abouammo’s conviction, the U.S. Court of Appeals for the 9th Circuit said that the place where the “contemplate[d] … effect” of a crime will be felt suffices to establish constitutional venue. This case may seem relatively technical, but it appears to invoke substantial questions of constitutional interpretation. Abouammo argues that the text, the Framers’ understanding, and the history of the Constitutional provisions at issue all require that federal criminal venue be restricted to one’s physical location. The solicitor general has not yet filed its responsive brief, but in opposing review argued that it is well-settled that “continuing offenses” can be “committed” in more than one district, and that this doctrine should apply to the contemplated effects of the specific obstruction of justice statute here. Perhaps minds in 1790 contemplated only physical locations, but the court has had to deal with technology stretching physical boundaries in the past (and will again, see Chatrie discussed below). A more detailed “history and tradition” brief should be filed by the government soon. The day after the Abouammo argument, on March 31, the court is scheduled to hear argument in Pitchford v. Cain. In the 1986 case of Batson v. Kentucky, the court ruled that striking potential jurors based on their race is unconstitutional. Pitchford involves a complex and “fact intensive” application of that doctrine, under the highly deferential layer of federal court deference to state court criminal judgments required by the Anti-terrorism and Effective Death Penalty Act (commonly referred to as AEDPA, pronounced “ed-pah” or “ah-dee-pah”). The court has reduced the questions presented in this case to one: was the Mississippi Supreme Court’s decision that Terry Pitchford waived his right to challenge the prosecutor’s reasons for striking four black jurors unreasonable? Pitchford is a black man on Mississippi’s death row. The state trial prosecutor was the same prosecutor found responsible in the 2019 case of Flowers v. Mississippi for “a blatant pattern of striking potential back jurors,” a fact that Pitchford’s brief highlights. The Flowers case, however, came to the court directly from the Mississippi Supreme Court. By contrast, Pitchford’s case is before the court on review of a federal court decision on Pitchford’s habeas corpus petition after the Mississippi state courts all denied Pitchford’s Batson claim. In that context, AEDPA requires more deference to the Mississippi ruling than was true in Flowers: habeas corpus relief “shall not be granted … unless” the applicable caselaw was “clearly established” and the Mississippi court’s decision was so “unreasonable” that “fairminded jurists” could not disagree. (The non-textual “fairminded jurist” interpretation for AEDPA deference was announced in the 2011 case of Harrington v. Richter in 2011 and has been the subject of much attention and criticism). Another difference from Flowers may be that the “law” that initially must be applied here may be the law of “waiver,” rather than the Batson standards directly. On the other hand, the factual Batson record that Pitchford offers is disturbing. Mississippi’s brief in opposition has not yet been filed; there is also a chance that the solicitor general may seek to intervene as an amicus. Also of note: The petition asking the Supreme Court to review the Pitchford case was relisted eight times before review here was granted. The practice of multiple relistings – that is, placing a review request on the court’s private discussion agenda multiple weeks in a row – is subject to many possible interpretations, and has gone unexplained by the justices. The Pitchford case might have been suggested by some justices for summary reversal; that is, overturning a lower court opinion without briefing or oral argument – but who knows in which direction? The ultimate decision to review the case with full briefing and oral argument might have been a way to resolve (temporarily) deep internal disagreements. Meanwhile, among others, the late Judge Stephen Reinhardt (once called “the liberal lion of the 9th Circuit”) suggested in 2015 that Harrington deference “taken literally … would mean that a federal court could never grant habeas relief.” The Pitchford argument, and the court’s resulting decision, will likely demonstrate various justices’ thinking and stark disagreements about that claim. Finally, on the penultimate argument day of this term, April 27, Chatrie v. United States is scheduled for oral argument. Chatrie presents what could be a hugely important Fourth Amendment case. The issue is how to apply that 1790 provision of the amendment to a modern technological development called “geofence” warrants. Specifically, these are judicially approved orders issued at the request of law enforcement to companies that store cellphone records (in this case, Google), asking them to review the location data records they maintain for millions of customers and, ultimately, identify by name (“deanonymized” is the government’s euphemism) those customers who were present in a particular location on a particular day and time. Such specific location data can then be used – along with other information – to find persons possibly involved in a crime where the day, time, and location are known but the criminal perpetrator is not. Indeed, that is what happened to Okello Chatrie, who after being identified and then further investigated, was convicted of federal armed robbery and firearm brandishing and sentenced to over 11 years in prison. The further we live from the time of the Constitution’s framers, the more challenging becomes applying their words to unforeseen changes. But as Chief Justice John Marshall explained two centuries ago in McCullough v. Maryland, the constitutional authors intended that the document “endure for ages to come” and “be adapted” to address unforeseen situations. Thus (as I suggest to my students every year), original intent requires an adaptive Constitution. In Chatrie, the court has granted review over the solicitor general’s opposition, and expressly limited the question to be argued solely to the Fourth Amendment, which succinctly protects “[t]he right of … people to be secure in their persons, houses, papers, and effects.” The question is how these words can be applied to people’s electronically-compiled cellphone location data. The court has previously ruled on Fourth Amendment limitations for telephone wiretaps, surveillance by airplanes, and thermal heat imagers (despite the Framers failure to mention them). In 2018, in Carpenter v. United States, the court recognized the privacy-threatening implications of “pervasive” cellphone use and ruled that government acquisition of cellphone location data was a “search.” But technology continues to evolve at lightning speed and lower courts have now taken different positions regarding geofence searches. The court granted review here over the solicitor general’s opposition – apparently the justices have decided to try to keep up with things.    As Adam Unikowsky wrote in a brief requesting review for Chatrie, “[t]he law enforcement benefits of geofence warrants are obvious, but so too are the privacy implications and potential for abuse.” Is an “anonymized” search of millions of people records a “general warrant” of the type that the Framers clearly opposed? Do such warrants lack the sort of “particularity” that the Fourt Amendment requires? Do other types of mass searches of electronic databanks require warrants at all, and if so, what rules apply? The parties have not yet filed their briefs on the merits, but this seems like an oral argument that not just criminal law groupies, but also technology company executives at the highest level, will not want to miss. The court is beginning to fill its docket for next term In closing, it should also be noted that the court has granted review in two more cases, without scheduling them for oral argument this term. It is very likely that these cases will be scheduled for argument at the beginning of the 2026-27 term next October. Fortunately for me, neither case appears to involve criminal law issues (although the Video Privacy Protection Act case – which is at the heart of one of them – might well be described as criminal law adjacent). The Supreme Court’s docket, like a river, keeps on flowing – I’ll keep reporting on it as long as I can swim. The post The anticipated criminal law decisions and arguments for the rest of this term appeared first on SCOTUSblog.

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