Monday round-up

Monday round-upThis morning, the first day of the December argument session, the Supreme Court will hear oral argument in two cases. The first is Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of inter partes review, a process used to determine the validity of existing patents. Ronald Mann had this blog’s […]

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Monday round-up

This morning, the first day of the December argument session, the Supreme Court will hear oral argument in two cases. The first is Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of inter partes review, a process used to determine the validity of existing patents. Ronald Mann had this blog’s argument preview. Another preview comes from The George Washington Law Review’s On the Docket blog. The editorial board of The Wall Street Journal weighs in on the case, arguing that “[i]nter partes review was well-intended, but any economic benefits aren’t worth the constitutional damage.” At the Yale Journal on Regulation’s Notice and Comment blog, Philip Hamburger maintains that “patents are property, which cannot be invalidated outside the courts.”

The second argument of the day is in  SAS Institute Inc. v. Matal, which asks whether the board conducting an inter partes review must issue a final written decision as to all the claims raised by a challenger. Ronald Mann previewed the case for this blog. On the Docket also offers a preview of the case.

For Fox News, Bill Mears reports that “[a]dvocates on both sides of the issue” in Wednesday’s case, Carpenter v. United States, which asks whether the government must obtain a warrant for cell-site-location information, “hope the justices are now prepared to clarify guidelines on access to digital records.” For The New York Times, Adam Liptak explains why “the case could transform privacy law in the digital era.” In an op-ed for The Washington Post, Stephen Sachs urges the court to “develop a modern Fourth Amendment doctrine … [that] would recognize the legitimate claims of law enforcement but set objective boundaries — such as the duration of an intrusion or the nature of the data seized — that constrain those claims.” Additional commentary on Carpenter comes from Margaret Sullivan in The Washington Post, who explores the implications of the case for journalists, and from the editorial board of The New York Times.

In advance of next Tuesday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will consider whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, Richard Wolf reports for USA Today that in a term full of high-profile cases, “it is the justices’ third date with same-sex marriage that’s dominating the docket.” At Casetext, David Boyle discusses the reply brief filed by the cakeshop last week, arguing that “under Petitioners’ ‘compelled speech’ theory of the case, bakers could quite possibly discriminate against interracial marriages and refuse to sell them a wedding cake, legally.”

Briefly:

  • For The Washington Post, Robert Barnes reports that in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting, “a broad ruling for New Jersey could have consequences for other ways that the federal government tries to push policy preferences on state officials.”
  • At the Associated Press, Mark Sherman reports that “50-year-old [Justice Neil Gorsuch] has been almost exactly what conservatives hoped for and liberals dreaded when he joined the court in April.”
  • At the Associated Press, Jessica Gresko reports that thanks to Justices Sandra Day O’Connor and Sonia Sotomayor, “[g]ames created by iCivics [that] teach students concepts from how the nation’s court system works and how laws are made to how presidential campaigns work and what it’s like to be on a jury” are now available in both English and Spanish.
  • At The Economist’s Espresso blog, Steven Mazie looks at Digital Realty Trust Inc. v. Somers, which will be argued tomorrow and which involves the whistleblower protections of the Dodd-Frank Act.
  • At In a Crowded Theater, Erica Goldberg suggests that “[c]ataloging some of the instances where courts incorporate math helps illuminate how the Court should proceed in Gill v. Whitford,” in which they will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander.

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Wednesday round-up

Wednesday round-upYesterday the U.S. government asked the Supreme Court to allow all the provisions of President Donald Trump’s September 27 entry ban to go into effect while the government appeals a nationwide injunction issued by a district court judge in Hawaii that now blocks enforcement of key portions of the ban. Amy Howe has this blog’s […]

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Wednesday round-up

Yesterday the U.S. government asked the Supreme Court to allow all the provisions of President Donald Trump’s September 27 entry ban to go into effect while the government appeals a nationwide injunction issued by a district court judge in Hawaii that now blocks enforcement of key portions of the ban. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Josh Gerstein at Politico, Jess Bravin for The Wall Street Journal, Lyle Denniston at his eponymous blog, and Ariane de Vogue at CNN.

At Constitution Daily, Scott Bomboy looks at Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim. The Los Angeles Times editorial board weighs in on the case, arguing that “if the 1st Amendment means anything, government officials shouldn’t be able to punish dissenters, even rude ones, by selectively subjecting them to arrest — even if the arrest might be justified on other grounds.”

Briefly:

  • The Open File maintains that in Floyd v. Alabama, a pending cert petition,the state courts have again left it up to the U.S. Supreme Court—apparently the last and only line of defense against race discrimination in jury selection—to call a fig a fig.”  
  • At Empirical SCOTUS, Adam Feldman “looks at th[e] attorneys … who ha[ve] filed successful petitions for the current term [and] tracks these attorneys’ success at bringing cases to the Court on cert since the 2013 term.”
  • At Quomodocumque, mathematician Jordan Ellenberg takes issue with a claim made at oral argument on behalf of the state of Wisconsin in partisan-gerrymandering case Gill v. Whitford, asserting that“the idea that [the] efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

 

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More on the December calendar

More on the December calendarThe Supreme Court released its calendar today for the December sitting, which begins on November 27. During the six days of the sitting, the justices will hear 10 oral arguments: Four of the days will feature two oral arguments each, while two days have only one oral argument scheduled each day. Highlights of the sitting […]

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More on the December calendar

The Supreme Court released its calendar today for the December sitting, which begins on November 27. During the six days of the sitting, the justices will hear 10 oral arguments: Four of the days will feature two oral arguments each, while two days have only one oral argument scheduled each day. Highlights of the sitting include the much-anticipated oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado baker argues that requiring him to create custom cakes for same-sex wedding celebrations violates his right to religious freedom, and Carpenter v. United States, in which the justices will consider whether law-enforcement officials must obtain a warrant to request cell-phone records from a cell-phone service provider. The justices granted review in all of the cases on the December calendar before they returned from their summer recess; this means that the cases granted last week after the justices’ September 25 conference are likely to be scheduled for argument in the January sitting.

Here is a complete list of the cases slated for argument in the December sitting, along with brief summaries for the cases not already mentioned above:

Monday, November 27

Oil States Energy Services v. Greene’s Energy Group – A challenge to the constitutionality of an administrative process known as inter partes review, which can be used to contest the validity of patents that have already been issued.

SAS Institute v. Matal – Whether the Patent Trial and Appeal Board must issue a final written decision on all of the claims that are being challenged in inter partes review, or instead only some of them.

Tuesday, November 28

Cyan v. Beaver County Employees Retirement Fund – Whether a 1998 federal law, the Securities Litigation Uniform Standards Act, bars a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933.

Digital Realty Trust v. Somers – Whether a lawsuit can go forward under the provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 protecting “whistleblowers” from retaliation when the plaintiff did not report alleged misconduct to the Securities and Exchange Commission and thus falls outside the act’s definition of “whistleblower.”

Wednesday, November 29

Carpenter v. United States

Monday, December 4

Christie v. National Collegiate Athletic Association (consolidated with New Jersey Thoroughbred Horsemen’s Association v. NCAA) – Whether the federal Professional and Amateur Sports Protection Act, which prohibits states from authorizing sports-gambling schemes, violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states.

Rubin v. Islamic Republic of Iran – Whether the Foreign Sovereign Immunities Act, which generally protects property in the United States that is owned by foreign governments from being seized but contains some limited exceptions, contains a “freestanding” immunity exception, or whether the other requirements for seizing a foreign state’s property instead still apply.

Tuesday, December 5

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Marinello v. United States — Whether a conviction for trying to impede or obstruct the administration of the tax laws requires the government to show that the defendant knew of a pending IRS action when he acted.

Wednesday, December 6

Murphy v. Smith – Under the Prison Litigation Reform Act, when a prisoner is awarded money in a civil rights lawsuit, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendants”: Does the phrase “not to exceed 25 percent” mean that 25 percent of the money awarded to the prisoner must go toward his attorney’s fees, before the defendants must also contribute to the fees, or can the district court require a smaller portion of the attorney’s fees to come out of the prisoner’s award?

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in Oil States Energy Services and is among the counsel to the respondents in Cyan. However, I am not affiliated with the firm.]

 

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Petitions to watch | Conference of October 6

Petitions to watch | Conference of October 6In its conference of October 6, 2017, the court will consider petitions involving issues such as whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether […]

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Petitions to watch | Conference of October 6

In its conference of October 6, 2017, the court will consider petitions involving issues such as whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.

16-739

Issues: (1) Whether deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA on September 25, 2007, or whether deference, if any, is owed under Skidmore v. Swift & Co.; and (2) whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

16-1454
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’ anti-steering provisions stifle price competition on the merchant side of the credit-card platform suffices to prove anti-competitive effects and thereby shifts to American Express the burden of establishing any procompetitive benefits from the provisions.

16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California, or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, when the jury was repeatedly advised by the court that its advisory sentencing recommendation was non-binding.

17-17
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Title IV-E of the Social Security Act, 42 U.S.C. § 670 et. seq., confers an individual right to foster-care maintenance payments that is enforceable by bringing suit under 42 U.S.C. § 1983.

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Tuesday round-up

Tuesday round-upIn The New York Times, Adam Liptak reports on the latest public comments of the Supreme Court’s “most outspoken member,” noting that “[i]n a pair of recent appearances, Justice [Ruth Bader] Ginsburg critiqued the Trump Administration’s travel ban, previewed the coming court term, predicted an end to capital punishment and suggested that other branches of […]

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Tuesday round-up

In The New York Times, Adam Liptak reports on the latest public comments of the Supreme Court’s “most outspoken member,” noting that “[i]n a pair of recent appearances, Justice [Ruth Bader] Ginsburg critiqued the Trump Administration’s travel ban, previewed the coming court term, predicted an end to capital punishment and suggested that other branches of government are in disarray.” In The Salt Lake Tribune, Jessica Miller reports that at the Utah State Bar convention, Ginsburg “had this advice for young lawyers: ‘Do something outside of yourself. Something that will make a difference.’”

Fix the Court offers an end-of-term report on transparency at the Supreme Court, which tells “the story of improvement at the margins – not only with the high court’s website but also regarding digital disclosures, stock selloffs and livestreaming.” In The National Law Journal (subscription or registration required), Tony Mauro reports that with its recent website update, the Supreme Court has taken “baby steps” towards “a planned electronic filing system that will make Supreme Court briefs and documents available to all on the site,” “befitting an institution whose building is decorated with bronze and marble tortoises.”

Briefly:

  • In The University of Pennsylvania’s Regulatory Review, Lori Fox looks at the court’s decision this term in Endrew F. v. Douglas County School District, in which the justices raised the bar for what constitutes an educational benefit for children with disabilities; she observes that after Endrew F., “[p]arents willing to litigate may be more likely to demand particularly broad—and expensive—measures, including private schooling.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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No stay for Ohio executions

No stay for Ohio executionsOver a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter. Phillips and […]

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No stay for Ohio executions

Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.

Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die.

The Supreme Court has ruled that inmates challenging a planned method of execution must show both that the method creates a substantial risk of severe pain and that a less painful alternative is known and available. A federal district court ruled that Phillips and the other inmates had made this showing. It pointed to expert testimony which suggested that midazolam, the first drug in the state’s lethal-injection protocol, will sedate the inmate but will not render him impervious to the pain that the second and third drugs – which paralyze him and then stop his heart – can cause. Moreover, the district court concluded, the inmates had demonstrated that Ohio could use another drug – pentobarbital, a barbiturate that would prevent the inmate from feeling pain – as part of the three-drug protocol instead. But a divided federal appeals court reversed, prompting the inmates to go to the Supreme Court.

The justices refused to intervene. In her brief dissent, Sotomayor complained that the lower court should have given more deference to the district court’s findings. Sotomayor referred back to her dissent in another lethal-injection case earlier this year, in which she had expressed “significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own execution” but, at the very least, had urged her colleagues to provide “clarification and guidance” on the rule. Last night, she closed her opinion by indicating that she would “dissent again from this Court’s failure to step in when significant issues of life and death are present.”

Phillips is scheduled to be executed at 10 a.m. local time today. The executions of Otte and Tibbetts are currently scheduled for September 13 and October 18, respectively.

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Menu of today’s content

Menu of today’s contentToday we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link. Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic […]

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Menu of today’s content

Today we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link.

Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic Draye, Austin Sarat, Brian Stull and Brianne Gorod. These and future contributions are available at this link.

Additionally, this morning Amy Howe covered the court’s final orders of the term, and Steve Vladeck analyzed the court’s opinion in Davila v. Davis.

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Menu of today’s content

Menu of today’s contentHere is an overview of today’s case coverage: 6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board. 11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii. 1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of […]

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Menu of today’s content

Here is an overview of today’s case coverage:

6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board.

11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii.

1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of Columbia v. Comer.

2:52 p.m.: John Elwood reviewed relists for today’s final conference of the term.

3:51 p.m.: Mark Walsh provided a “view” from the courtroom for today’s orders and opinions.

4:02 p.m.: Kevin Johnson covered the court’s ordered reargument in Sessions v. Dimaya and Jennings v. Rodriguez.

4:23 p.m.: Amy Howe analyzed the court’s opinion in Hernández v. Mesa.

7:17 p.m.: Amy Howe covered today’s order list.

8:21 p.m.: Ronald Mann analyzed the court’s opinion in California Public Employees’ Retirement System v. ANZ Securities.

Molly Runkle also rounded up early outside coverage and commentary on today’s orders and opinions.

We are also hosting a symposium on the court’s ruling in Trinity Lutheran v. Comer. Our first contributions come from Erin Morrow Hawley, Leslie Griffin and Nathan Diament.

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Hawaii to Supreme Court: No need to review travel ban

Hawaii to Supreme Court: No need to review travel banCalling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state […]

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Hawaii to Supreme Court: No need to review travel ban

Calling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state told the justices, they should allow two lower-court orders putting the order on hold to remain in place. After all, the state suggested, even the federal government – which is defending the order in court — “has revealed by word and deed that even it believes” that the travel ban is no longer necessary.

The Trump administration has asked the justices to reinstate the travel ban, which two separate federal appeals courts had blocked, and review the dispute over the ban on the merits. The government’s original request for the Supreme Court to weigh in came after the U.S. Court of Appeals for the 4th Circuit had blocked the government from implementing the ban, but before the U.S. Court of Appeals for the 9th Circuit had ruled in Hawaii’s challenge to the ban. The justices ordered the latest round of briefing – of which today’s filing was a part – after the 9th Circuit ruled for Hawaii on June 12.

The brief that Hawaii filed today reiterated many of the points that the state made in its earlier briefing. The state complained, for example, that the federal government had doubled “down on a breathtaking vision of unreviewable” power for the executive branch. But, the state maintained, federal immigration laws do not give president “an absolute right to control immigration.” Recounting the history of early U.S. colonists, the state stressed that the Founding Fathers “were thus familiar both with the violent threat posed by religious zealots and with the threat to our liberties posed by governments acting in the name of the United States. Our Constitution,” the state emphasized, “is designed to guard against them both.”

But the main focus of the state’s brief (as well as a short brief filed by the challengers in the 4th Circuit case) was an effort to convince the justices that, putting everything else aside, there is no need for the justices to get involved in the travel ban dispute now. The state explained that, in the wake of the 9th Circuit’s ruling, the president had instructed agencies within the federal government to begin their review – required by the March 6 order – of the procedures that they use to vet visa applications. The government, the state contended, had argued that the ban on new visas for travelers from the six Muslim-majority countries was necessary to give the government time to conduct this review. The government will now be able to start that process soon.

But, the state continued, the provisions in the March 6 order barring new visas for travelers from six Muslim-majority countries won’t go into effect until three days after the freeze is lifted. And the federal government has told the Court that it does not need to hear the case until October, almost nine months after the ban was originally imposed. By that point, the state suggested, the government’s justification for the ban – the need to vet visa procedures – will no longer exist, eliminating any need for the court to weigh in. “Even when faced with important issues,” the state observed, “this Court does not review cases that no longer have any practical urgency.”

Hawaii also told the justices that, if they disagree and decide to review the 4th Circuit’s ruling freezing the travel ban, they should also take on the 9th Circuit’s case. The federal government will file its response to today’s filing by noon tomorrow – presumably in time for it to consider the government’s requests at the justices’ private conference on Thursday.

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Menu of today’s content

Menu of today’s contentHere is an overview of today’s case coverage: 7:12 a.m.: Amy Howe covered the federal government’s change in its position in the cases next term consolidated as Epic Systems Corp. v. Lewis.  12:56 p.m.: Amy Howe covered the court’s grant in partisan-gerrymandering case Gill v. Whitford. 1:52 p.m.: Amy Howe analyzed the court’s opinion in […]

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Menu of today’s content

Here is an overview of today’s case coverage:

7:12 a.m.: Amy Howe covered the federal government’s change in its position in the cases next term consolidated as Epic Systems Corp. v. Lewis. 

12:56 p.m.: Amy Howe covered the court’s grant in partisan-gerrymandering case Gill v. Whitford.

1:52 p.m.: Amy Howe analyzed the court’s opinion in Packingham v. North Carolina.

2:56 p.m.: Ronald Mann analyzed the court’s opinion in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.

3:47 p.m.: Mark Walsh provided a “view” from the courtroom for today’s opinion announcements.

4:25 p.m.: Amy Howe analyzed the court’s opinion in McWilliams v. Dunn.

9:03 p.m.: Amy Howe analyzed the court’s opinion in Ziglar v. Abbasi.

We are also hosting a symposium on the court’s ruling in Matal v. Tam, formerly known as Lee v. Tam. Our first contribution is by Caleb Trotter.

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