Term round-up

Term round-upMoloLamken has compiled its annual “Supreme Court Business Briefing,” writing that “[a]fter two years of largely modest decisions, the Supreme Court was back in full force, delivering major rulings in the business arena and elsewhere.” We invite you to alert us (feedback [at] scotusblog [dot] com) to any other reviews of the Supreme Court term.

The post Term round-up appeared first on SCOTUSblog.

Term round-up

MoloLamken has compiled its annual “Supreme Court Business Briefing,” writing that “[a]fter two years of largely modest decisions, the Supreme Court was back in full force, delivering major rulings in the business arena and elsewhere.”

We invite you to alert us (feedback [at] scotusblog [dot] com) to any other reviews of the Supreme Court term.

The post Term round-up appeared first on SCOTUSblog.

from http://www.scotusblog.com

Potential nominee profile: Raymond Kethledge

Potential nominee profile: Raymond KethledgeLike Thomas Hardiman, another potential nominee on the president’s shortlist, Judge Raymond Kethledge would bring educational diversity to a bench on which all of the current justices attended Ivy League law schools: He received both his undergraduate and law degrees from the University of Michigan. He has returned to the law school as a lecturer […]

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Potential nominee profile: Raymond Kethledge

Like Thomas Hardiman, another potential nominee on the president’s shortlist, Judge Raymond Kethledge would bring educational diversity to a bench on which all of the current justices attended Ivy League law schools: He received both his undergraduate and law degrees from the University of Michigan. He has returned to the law school as a lecturer to teach classes on legal writing and advocacy. (While he is there, he could bump into another potential nominee on Trump’s shortlist, Michigan Supreme Court Justice Joan Larsen, who has also taught there.) During a decade on the bench, Kethledge has compiled an extensive body of opinions but has not weighed in on several high-profile and potentially divisive issues, including abortion and affirmative action. Conservative commentator Hugh Hewitt has nonetheless dubbed Kethledge “Gorsuch 2.0,” “in the mold of Antonin Scalia.”

Kethledge was born in New Jersey in 1966 but grew up in Michigan, where his father was a senior executive in the car business. Kethledge was a history major before law school; he graduated from law school magna cum laude in 1993. After graduation, he served as a law clerk to Judge Ralph Guy on the U.S. Court of Appeals for the 6th Circuit and later at the Supreme Court, clerking for Justice Anthony Kennedy. In between his clerkships, Kethledge did a stint in private practice and spent two years working as a lawyer for Senator Spencer Abraham of Michigan on the Senate Judiciary Committee – the same committee that would hold hearings to consider Kethledge’s nomination if he were nominated.

After the Supreme Court, Kethledge returned to private practice in Michigan, working first for a large Detroit firm and then starting his own law firm after a short time as an in-house counsel for the Ford Motor Company. While in private practice, Kethledge’s caseload focused heavily on civil and commercial litigation, primarily under state law. At his confirmation hearing, Kethledge told senators that his pro bono work had included working with Detroit residents to clear existing tax liens resulting from foreclosures by prior homeowners, so that they could renovate.

Kethledge’s route to the 6th Circuit was somewhat unorthodox. In June 2006, President George W. Bush nominated the then-40-year-old Kethledge to fill a long-vacant seat on the court of appeals, but Kethledge’s nomination stalled and then lapsed when Congress adjourned in December of that year. Bush nominated Kethledge again a few months later, but his nomination once again remained on hold until the Bush administration struck a deal with Michigan’s two Democratic senators, Carl Levin and Debbie Stabenow: Both Kethledge and Helene White, a cousin of Levin’s by marriage who had been nominated by Bill Clinton but never confirmed to fill a vacancy on the 6th Circuit, would go on the 6th Circuit. Kethledge was confirmed in June 2008 by a voice vote and took office 10 years ago today.

In his 10 years on the bench, Kethledge has been regarded as a strong writer. He was twice recognized by the Green Bag – a legal journal that bills itself as devoted to “short, readable, useful, and sometimes entertaining legal scholarship” – for “exemplary legal writing.” Perhaps not coincidentally, Kethledge writes his own published opinions, rather than having his clerks do the first draft. In an interview, he told the website Above the Law that “the process of writing makes me think so much harder about the subject than just editing does.”

At his confirmation hearing, Senator Sam Brownback of Kansas asked Kethledge to describe his “view of the Constitution, whether you see it as . . . a living document or as a strict constructionist.” Kethledge demurred, telling Brownback that he does not “really have a label that I can put on myself.” Instead, he explained, “obviously, first and foremost I would follow Supreme Court precedent.” But then he added that he “would make sure that the values I would be enforcing if I were a judge are not just my values.” “I would,” Kethledge concluded, “start with the text.”

Kethledge has more recently offered a better window into his views on judging and the law. In March of this year, he joined an opinion by Judge John Bush that concurred in the full 6th Circuit’s ruling against an inmate who argued that his Sixth Amendment right to the assistance of counsel was violated during his plea negotiations, even if he had not yet been indicted. Bush, joined by Kethledge, acknowledged that the court’s decision was dictated by current Supreme Court precedent, but they posited that the “history of the original meaning of the Sixth Amendment” would lead to a broader interpretation of when the right to an attorney exists. Therefore, they suggested, “the Supreme Court might wish to reconsider its right-to-counsel jurisprudence.”

During the term that just ended, the justices reviewed (and, by a divided vote, reversed) the decision that Kethledge had written for the 6th Circuit in Carpenter v. United States, an important cellphone privacy case. Law-enforcement officials in Michigan had obtained historical cell site records, which indicate which cell towers connect with a cellphone while it is in use, for Timothy Carpenter, who was accused of being the mastermind behind a series of armed robberies. Officials used the records to place Carpenter in the vicinity of the crimes, but Carpenter argued that the records should be suppressed because police had not obtained a warrant for them.

Kethledge wrote for a three-judge panel upholding the district court’s ruling against Carpenter. Kethledge stressed that federal courts “have long recognized” the distinction between the substance of a communication, which is entitled to privacy, and the “information necessary to get those communications from point A to point B,” which is not. Here, he concluded, the cell site records “fall on the unprotected side of” the line because they “say nothing about the content of any calls” and instead simply “include routing information, which the wireless providers gathered in the ordinary course of business.”

Kethledge’s ruling was consistent with rulings by other courts of appeals, but the Supreme Court – by a vote of 5-4 – reversed. Chief Justice John Roberts wrote for the majority, emphasizing the extent to which cellphones have become ubiquitous in modern society, “conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.” “Given the unique nature of cell phone location records,” the court concluded, “the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.”

In 2008, the Supreme Court reviewed, although on an emergency basis, another ruling in which Kethledge had participated. Kethledge had joined a majority of the full 6th Circuit in upholding a district court’s ruling in favor of the Ohio Republican Party in a case involving the Help America Vote Act that liberal groups warned could have resulted in “last-minute disenfranchisement” for “thousands of eligible new Ohio voters.” The party had argued that the act requires states to successfully match voters with computer records in the state’s driver’s license database or the Social Security database before they could register to vote or have their votes counted. The district court granted the party’s motion to require Ohio’s secretary of state to give county election boards either lists of mismatches or a way to identify the mismatches, and the full 6th Circuit upheld that ruling. The secretary of state asked the Supreme Court to step in; in an unsigned order, the justices vacated the district court’s temporary order. The justices did not weigh in on the merits of the dispute, but instead concluded that the party had not shown that it was “sufficiently likely to prevail” on the question whether the district court has the authority to enforce the law in a case filed by a private party.

During his time on the bench, Kethledge has been a solidly conservative vote. He has almost uniformly voted in favor of the state and against the inmate in death-penalty cases. In United States v. Gabrion, Kethledge wrote for the divided en banc court in affirming a federal death sentence. Perhaps in response to the gruesomeness of the murders at issue in the case, Kethledge’s opinion uses strong terms. For example, several of the inmate’s arguments centered on the fact that he was tried in federal, rather than state, court because one of the murders took place in a national forest in Michigan – which does not have the death penalty. Kethledge rejected the inmate’s argument that the absence of the death penalty in Michigan should have been a mitigating factor considered by the jury in determining his sentence, because he would not have otherwise been subject to the death penalty. Kethledge pointed to the Supreme Court’s caselaw indicating that mitigating circumstances can play a role in a defendant’s personal culpability. “That Michigan lacks a death penalty is irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.”

Kethledge was similarly dismissive off the inmate’s argument that he should be allowed to argue at his sentencing that there was some “residual doubt” about whether the victim was actually killed in the national forest. Kethledge wrote that “the exclusion of Gabrion’s residual-doubt argument was so palpably harmless as to render an opinion on the merits of the exclusion nearly advisory.” Indeed, he continued, although “most residual-doubt cases” hinge on whether the inmate “actually committed the murder, here the supposed doubt concerns only a technical jurisdictional issue that, though significant legally, is much less so morally.”

Kethledge’s conclusion also referred to the jury’s ruling in moral, rather than legal, terms. He observed that, “[a]fter 11 days of testimony and two days of careful deliberation, the 12 jurors who sat on this case decided unanimously that Marvin Gabrion deserved a sentence of death for what he did to” the victim. “We have no basis,” Kethledge stressed, “to set aside that moral judgment.”

Kethledge’s lone vote in favor of a death-row inmate came on a request for rehearing in Mitts v. Bagley, a capital case in which the three-judge panel had granted the inmate relief. Kethledge joined an opinion by Judge Jeffrey Sutton which opined that “this case was not decided correctly” but nonetheless concurred in the denial of rehearing on the ground that the traditional criteria for review by the full 6th Circuit had not been met.

And although Kethledge joined another opinion (once again by Sutton) that rejected a death-row inmate’s petition for habeas corpus, the opinion at least suggested that other relief from the inmate’s death sentence might be appropriate. In his conclusion, Sutton indicated that the ruling “is not necessarily the end of the road” for the inmate. “Among other things,” he explained, the inmate “has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.”

In 2017, Kethledge wrote an opinion for the full 6th Circuit rejecting a challenge by three death-row inmates to Ohio’s lethal injection protocol. The opinion began with a paragraph recounting the details of each man’s crimes, including how “Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs collapsed”; Gary Otte “went out partying” after each murder that he committed; and “Raymond Tibbetts killed an elderly man and his caretaker,” whom police found “slumped in his chair with butcher knives protruding from his chest and back” and “on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.” Kethledge explained that the court “respectfully” disagreed with the trial court’s decision blocking Ohio from using the protocol because the lower court had used the wrong legal standard. Kethledge also rebuffed the inmates’ other arguments that the protocol creates an unconstitutional risk of pain. He conceded that the inmates had shown “some risk that Ohio’s execution protocol may cause some degree of pain, at least in some people.” And he added that “[d]ifferent people may have different moral intuitions as to whether—taking into account all the relevant circumstances—the potential risk of pain here is acceptable. But the relevant legal standard, ass it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain” – a showing that the inmates had not made.

Kethledge has not personally written any opinions involving gun rights, but his vote in one of them suggests that he would support a broader interpretation of the Second Amendment. In Tyler v. Hillsdale County Sheriff’s Department, the en banc Sixth Circuit struck down a ban on gun possession by anyone who had spent time in a psychiatric facility. Kethledge joined a separate opinion by Sutton which agreed that the ban should be invalidated but argued that the lead opinion had not gone far enough because it left “the decision whether to give” the would-be gun owner “more process to the district court.” Sutton’s opinion also emphasized that the “Second Amendment establishes a fundamental right for American citizens to possess a gun.”

Kethledge is hard to pigeonhole on the First Amendment. In a 2012 case (Dixon v. University of Toledo), he joined a ruling in favor of the university in a case brought by a high-level African-American official who was fired after she wrote an op-ed critical of efforts to compare the civil rights and gay rights movements. The official had argued that she was merely expressing “her personal opinion and viewpoint on the issue of homosexuality and civil rights from the perspective of a Christian, African-American woman.”

The same year, Kethledge ruled in favor of a public transit agency and against a non-profit that wanted to buy advertising space on a bus for an ad that included (among other things) the URL “RefugefromIslam.com.” The non-profit, the American Freedom Defense Initiative, seeks to counter what it characterizes as capitulation to “the global jihad and Islamic supremacism,” but the transit agency rejected their request to buy the ad on the ground that it had a policy which barred content “that is political or that subjects any group to scorn.”

More recently, Kethledge joined the full 6th Circuit in an opinion in favor of a group of Christian evangelists, known as “Bible Believers,” in their federal civil rights case. The group argued that police officers violated their First Amendment right when they were forced to leave an annual Arab Festival, where members of the group wore T-shirts and carried banners with messages like “Islam is a religion of blood and murder” and carried a “severed pig’s head on a spike.” The 6th Circuit made clear that it did “not presume to dictate to law enforcement precisely how it should maintain the public order,” but added that “in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker.” “We simply cannot,” the court concluded, “accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.”

In 2012, Kethledge wrote an opinion for a three-judge panel that struck down Ohio’s ban on campaign contributions by Medicaid providers to candidates running for attorney general or county prosecutor. In a unanimous opinion joined by Judges Martha Daughtrey (a Clinton appointee) and Bernice Donald (an Obama appointee), Kethledge questioned the state’s argument that the ban was intended to prevent corruption, describing it as “dubious at best.” But in any event, Kethledge continued, the ban was too broad because it “prevents all 93,000 of Ohio’s Medicaid providers from contributing to candidates for Attorney General or county prosecutor” even if “only .003%” “were implicated in Medicaid fraud.” Kethledge conceded that the state’s legislature should have “some latitude in determining how to craft limits on campaign contributions, given that, as an empirical matter, courts are without a ‘scalpel to probe’ where the contours of a minimally restrictive limit might lie.” But, Kethledge continued, “neither can we stand by while the patient is euthanized. The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do.”

Kethledge has not weighed in on another controversial issue: affirmative action. In 2012, Kethledge recused himself (presumably because of his ties to the University of Michigan) when the full 6th Circuit reviewed a challenge to the constitutionality of an amendment to the Michigan constitution that would prohibit the state’s public universities from considering race in their admissions process. The court of appeals ruled that the amendment was unconstitutional, but in 2014 the Supreme Court – by a vote of 6-2 – reversed.

In 2013, Kethledge wrote for the majority in rejecting an argument by unions and union members that a state law barring schools from collecting union dues through payroll deductions, and thereby requiring the unions to collect their own dues directly from employees, violates the First Amendment. Kethledge saw the issue as a straightforward one, dictated by Supreme Court precedent; to the extent that the unions were effectively arguing that the law’s “real purpose is to suppress speech by teachers’ union,” Kethledge stressed, “the law forecloses this kind of adventure.” Kethledge reasoned that the law “does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.”

Judge Jane Stranch dissented from the ruling. She argued that Kethledge’s majority opinion “mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from” the law’s “blatant viewpoint discrimination.” In particular, Stranch was troubled by “the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a ‘check on union power.’ The foundational requirement of viewpoint neutrality means little,” Stranch wrote, “if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state.”

If nominated and confirmed to the Supreme Court, Kethledge could be another vote to curtail the extent to which courts defer to administrative agencies. In a speech at the University of Michigan Law School last year, Kethledge reportedly criticized the idea that courts should defer to federal agencies under a legal doctrine known as the “Chevron doctrine,” which instructs courts to defer to an agency’s interpretation of a statute that it administers if the statute is ambiguous and the interpretation is reasonable. Alison Frankel of Reuters reported that Kethledge suggested that the Chevron doctrine “makes judges lazy” and “agencies sloppy”: “Deference brings latitude,” Kethledge said, “which can bring a sense that one is less accountable, which can bring a temptation to cut corners.” Citing several examples of cases that he had heard, Kethledge posited that “the agency is not trying to answer the same question that we are. The court tries to find the best objective interpretation of the statute, based on the statutory text. The agency instead asks if there is a colorable interpretation that will support the policy result that the agency wants to reach. When judges engage in that kind of analysis, we call it judicial activisms. And most observers condemn judicial activism as an arrogation of legislative power to the judiciary. It is not clear to me why the result is any better when the arrogation is done by the executive.”

In April of this year, Kethledge expressed more skepticism about agency overreach when he (along with Judge Amul Thapar, reportedly another shortlister) joined a decision by a three-judge panel in favor of an Ohio church that operated a restaurant which was staffed in part by parishioners, who were not paid. A federal district court ruled that the church’s failure to pay the parishioners for their work violated the Fair Labor Standard Act’s minimum wage law, and it awarded the federal Department of Labor $388,000 in damages, but the court of appeals reversed. Judge Eugene Siler wrote for the court, emphasizing that the Department of Labor’s argument was that the parishioners were spiritually – rather than economically, as the FLSA requires – coerced.

In a separate opinion, Kethledge was sharply critical of the Department of Labor’s argument, writing that its “premise—namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation—assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” “What is perhaps most troubling about the Department’s position in this case,” Kethledge continued, “is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.”

Kethledge had equally strong words for the Internal Revenue Service in a 2016 case filed by Tea Party groups, who alleged that they were singled out for significant delays and additional requests for information when they applied for tax-exempt status. The IRS resisted the groups’ efforts to obtain documents containing the names of other targeted groups, arguing that it was obligated to keep the information confidential.

In an opinion for a three-judge panel that drew praise from The Wall Street Journal’s editorial board, Kethledge firmly rejected that contention. He began by observing that one of “the most serious allegations a federal court can address” is “that an Executive agency has targeted citizens for mistreatment based on their political views.” After reviewing the taxpayer privacy laws at issue and determining that the IRS was not entitled to withhold the information that the groups sought, he concluded that the laws were “enacted to protect taxpayers from the IRS, not the IRS from taxpayers.” He acknowledged that the “lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys falls outside that tradition.”

Not all of Kethledge’s writing is legal writing. Last year he published a book on leadership, called Lead Yourself First, with Michael Erwin, an former Army officer who (among other things) now heads a non-profit to support veterans. The book, Kethledge and Erwin explain, is “based on the experiences of leaders—some contemporary, some historical—who have used solitude to function more effectively as leaders.” They chronicle everything from Dwight D. Eisenhower deciding when to give the order for D-Day to Jane Goodall’s campaign to change how we view chimpanzees to Pope John Paul II’s efforts to resist communism. The book also contains what could be interpreted as some very subtle tweaks of President Donald Trump: It laments that our “culture has become more strident than sublime, with a coarseness that has worn away the delicate alloy of beauty and decency that used to be called grace,” and it argues that the “examples of history—Lincoln, Churchill, Martin Luther King—show that a sublime leader is a more effective one, with an ability to inspire his followers rather than incite them.”

In his book, Kethledge also describes himself as a “strong introvert” who took “solo camping trips in the forests of northern Michigan” as a law student and now “heads up to his barn office looking out on northern Lake Huron, without any Internet connection, when writing opinions in difficult cases.” When he is not in his barn office, he lives near Ann Arbor with his wife, Jessica, and their two children – one son and one daughter.

 

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Opinion analysis: Railroads as the new tax shelter?

Opinion analysis: Railroads as the new tax shelter?Berkshire Hathaway CEO Warren Buffett has long lamented the fact that he pays a lower tax rate than his secretary. Now, top executives at Berkshire Hathaway-owned BNSF railroad will pay an even lower rate than their counterparts elsewhere. That is the outcome of the Supreme Court’s 5-4 ruling in Wisconsin Central Ltd. v. United States, […]

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Opinion analysis: Railroads as the new tax shelter?

Berkshire Hathaway CEO Warren Buffett has long lamented the fact that he pays a lower tax rate than his secretary. Now, top executives at Berkshire Hathaway-owned BNSF railroad will pay an even lower rate than their counterparts elsewhere.

That is the outcome of the Supreme Court’s 5-4 ruling in Wisconsin Central Ltd. v. United States, which holds that railroad employees are exempt from federal employment taxes on stock-based compensation. The decision delivers a victory for Wisconsin Central and its parent company, Canadian National Railway, which stand to reap a $13 million refund as a result of the ruling, as well as for other large railroads such as BNSF. It’s a setback for the Internal Revenue Service, opening up a new loophole for taxpayers to exploit. And perhaps most significantly, it’s another triumph for a textualist mode of statutory interpretation that prioritizes dictionary definitions over practical consequences.

The statute at issue, the Railroad Retirement Tax Act of 1937, may be unfamiliar to most readers, but several elements of it closely parallel the federal employment tax regime for non-railroad employers and employees. The RRTA levies a 6.2 percent employer- and employee-side “Tier 1” tax up to a wage cap of $128,400, which matches the 6.2 percent employer- and employee-side tax on non-railroad payrolls under the Federal Insurance Contributions Act. The RRTA further imposes a 1.45 percent employer- and employee-side Medicare tax that matches the Medicare tax on non-railroad employers and their workers. And the RRTA adds an 0.9 percent tax on individuals earning over $200,000 and married taxpayers earning more than $250,000, which mirrors the additional 0.9 percent tax on other high-income employees under the Affordable Care Act. (A separate “Tier 2” tax with a much lower wage cap finances additional retirement benefits for railroad employees.)

The question in Wisconsin Central was whether taxes under the RRTA — which generally apply at the same rate as other federal employment taxes — also apply to the same base. The RRTA applies to “compensation,” which is defined to mean “any form of money remuneration.” The Federal Insurance Contributions Act applies to “wages,” which are defined to mean “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.” The latter statute has been understood for decades to apply to stock-based compensation. The dispute in Wisconsin Central was whether the RRTA does too.

In a crisp nine-and-a-half page opinion joined by his four conservative colleagues, Justice Neil Gorsuch answers that question in the negative. His primary argument is that dictionaries and court cases circa 1937 considered “money” to mean “a medium of exchange.” “Pretty obviously,” writes Gorsuch, “stock options do not fall within that definition,” adding that “few of us buy groceries or pay rent or value goods and services in terms of stock.” To be sure, as the dissent notes, few of us buy groceries by endorsing our paychecks over to the supermarket — instead, we deposit our paychecks in the bank and then withdraw funds. So too, we can convert stock options into groceries in a matter of minutes with an E-Trade account and a credit card. But “stock,” says the majority, is not “money,” even though paychecks “no doubt” are.

Gorsuch also points to various places in the 1939 Internal Revenue Code where “stock” is mentioned in contradistinction to “money.” He further emphasizes the difference in language between the RRTA and the Federal Insurance Contributions Act, noting that “[w]e usually presume differences in language like this convey differences in meaning.” And he cites a regulation promulgated by the IRS predecessor agency in 1938 explaining that the RRTA applies to “something which may be used in lieu of money.” Stock options, according to Gorsuch, do not serve that function.

Nowhere, though, does Gorsuch explain why Congress would want railroads and their executives to be exempt from Medicare taxes on stock-based pay. (As a practical matter, today’s decision will matter mostly for Medicare-tax purposes, because railroad employees with generous stock-option packages will probably hit the Tier 1 and Tier 2 wage caps based on their cash compensation alone.) Justice Stephen Breyer, in dissent, hammers the majority on that point: Why should different tax rates apply to employees who receive the same amount of money in their bank accounts “simply because one received a paycheck while the other received proceeds from selling company stock”? Indeed, as Breyer notes, roughly half of the Wisconsin Central employees who receive stock-option pay choose to “check a box on a form” that instructs the employer to exercise their options immediately and then deposit the proceeds into their bank account — “just like a deposited paycheck.”

And the statute, according to Breyer, does not command this anomalous result. Dictionaries at the time of the RRTA actually offered a wide range of definitions of “money,” some of which likely would encompass stock options. The legislative history of the RRTA suggests that Congress used the language that it did in 1937 to ensure that free transportation and other in-kind benefits would be excluded from employment tax — not to carve out stock or stock options. Congress also has amended both the RRTA and the Federal Insurance Contributions Act to exempt a particular type of stock option — “incentive stock options” — which are separate from the stock options at issue here. “[W]hat need would there be to do so,” Justice Breyer asks, “if all noncash benefits, including stock options, were already excluded?”

Breyer ends his dissent by suggesting that the Supreme Court should defer to the IRS’s view that the RRTA covers stock-based pay. Adopting the agency’s interpretation, according to Breyer, would avoid the “unfairness” that today’s result generates. On a day when Justice Anthony Kennedy wrote separately in another case to criticize the federal courts of appeals for deferring to agency interpretations too often, it is no surprise that the majority declined to take up Breyer’s suggestion.

What might today’s decision mean for the tax system going forward? It is no doubt the second-most important tax decision of the day: The decision handed down moments later in South Dakota v. Wayfair will have an impact that is many orders of magnitude greater. Railroads, after all, are a very small sector of the American economy in 2018, and an exemption from employment taxes for a sliver of railroad-employee pay won’t seriously erode the federal tax base. But the decision does open up a potentially attractive arbitrage opportunity for at least a few tax-savvy enterprises. The statutory definition of a railroad “employer” is broad: Any company “under common control” with a rail carrier that operates any rail-related business potentially can qualify. A non-railroad enterprise could choose to merge with a railroad and potentially avoid employment taxes on its executives’ stock-option pay. Buffett’s Berkshire Hathaway, which already owns a railroad, would seem to be especially well positioned to implement this strategy. Might railroads — the big business of yesterday — be the tax shelters of tomorrow? That’s not a prediction, but it’s the sort of question that crops up when formalism reigns in federal tax law.

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Tuesday round-up

Tuesday round-upYesterday the court issued decisions in four cases; Mark Walsh has a first-hand account of the announcements for this blog. In Husted v. A. Philip Randolph Institute, the justices ruled 5-4 that Ohio’s process for removing infrequent voters from the state’s voter rolls, under which a failure to vote triggers the removal process, does not […]

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Tuesday round-up

Yesterday the court issued decisions in four cases; Mark Walsh has a first-hand account of the announcements for this blog. In Husted v. A. Philip Randolph Institute, the justices ruled 5-4 that Ohio’s process for removing infrequent voters from the state’s voter rolls, under which a failure to vote triggers the removal process, does not violate federal voter-registration laws. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript has a graphic explainer for the decision. At Good Judgment, Ryan Adler notes that the outcome is another win for Supreme Court forecasters. At Bloomberg, Greg Stohr reports that the court “said the system was a legitimate effort to identify people who have moved away and didn’t illegally penalize people for not voting.” For The Washington Post Robert Barnes notes that the case “is one of several in which the Trump administration switched sides; the Obama administration had backed challengers of Ohio’s process.” Additional coverage comes from Nina Totenberg at NPR, David Savage for the Los Angeles Times, Andrew Chung at Reuters, Richard Wolf for USA Today, Pete Williams at NBC News, Ariane de Vogue and Maegan Vazquez at CNN, Lydia Wheeler at The Hill, Chris Geidner at BuzzFeed News, Kevin Daley at The Daily Caller, Adam Liptak for The New York Times, Mark Sherman at the Associated Press, Gary Gately at Talk Media News, and Bill Mears at Fox News, who reports that “[a]t least six other states have similar rules in place, and Monday’s decision could lead others to adopt similar procedures.”

At Mother Jones, Pema Levy maintains that “strong evidence suggests that the [Ohio] policy causes minorities in heavily Democratic areas to be purged disproportionately.” Additional commentary comes from Garrett Epps at The Atlantic, Dahlia Lithwick at Slate, Daniel Nichanian in an analysis for NBC News, Mark Joseph Stern at Slate, here and here, Lisa Soronen at the National Conference of State Legislatures Blog, and Richard Hasen at Slate, who suggests that “Justice Sonia Sotomayor’s lone dissent provides two paths forward to mount new attacks on these voter-suppression laws based on their discriminatory impact.”

The court also ruled 8-1 in Sveen v. Melin that retroactive application of a state law providing that divorce automatically nullifies the designation of a former spouse as a life-insurance beneficiary does not violate the Constitution’s contracts clause. This blog’s opinion analysis, which first appeared at Howe on the Court, comes from Amy Howe.

In China Agritech v. Resh, the court held unanimously that the rule suspending the statute of limitations for individual claims filed after a failed class action does not apply to subsequent class actions. Ronald Mann has this blog’s opinion analysis. Subscript’s graphic explainer is here. At the Cato Institute’s Cato at Liberty blog, Walter Olson remarks that the court’s “unanimity is significant,” showing as it does that “[o]n procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth.” Archis Parasharami discusses the decision at Mayer Brown’s Class Defense Blog, as does Laura Lawless Robertson at The National Law Review. [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 respondents in this case.]

Yesterday the justices also affirmed the lower court’s judgment in Washington v. United States by an equally divided court. (Justice Anthony Kennedy was recused because he participated in a ruling in the case when he was a judge on the U.S. Court of Appeals for the 9th Circuit.) At E&E News, Amanda Reilly reports that “[a]t issue are blocked culverts — tunnels that are supposed to allow streams to pass under roads — that the 9th Circuit decided violated tribal fishing rights in 1850s-era treaties between tribes and the Pacific Northwest’s white settlers.” For The New York Times, John Eligon reports that the deadlock “let stand a lower court’s order that the state make billions of dollars worth of repairs to roads that had damaged the state’s salmon habitats and contributed to population loss,” and that it ended a “decades-long legal battle that drew attention because of its implications for Native American treaty rights and state sovereignty.” At The National Law Journal, Tony Mauro calls the outcome a “reminder … of the importance of recusals in the Supreme Court’s work.”

The justices also issued orders from last week’s conference, but added no new cases to their merits docket and took no action on a cert petition filed by a florist who refused to do the flowers for a same-sex wedding. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. At Bloomberg, Greg Stohr reports that the justices also “refused to reconsider rulings that give Major League Baseball a broad exemption from federal antitrust laws, turning away two appeals.” Mark Walsh reports at Education Week’s School Law Blog that the court “declined to take up a … case involving efforts by Indiana to limit teacher-tenure rights.”

First Mondays (podcast) looks at last week’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled in favor of a Christian baker who refused to make a cake for a same-sex wedding. At Keen News Service, Lisa Keen observes that the majority “could have easily resolved its concern about the Commission’s ‘hostility’ with a brief order,” but “[i]nstead, it provided an 18-page majority opinion that signaled the Supreme Court’s concern that gay people be treated with ‘dignity and worth,’ that laws ‘can, and in some cases must’ protect them, and that their efforts to be treated equality must be given ‘great weight and respect’ by the courts.”

Briefly:

  • At ACSblog, Richard Lorenc urges the justices to review a cert petition filed by a death-row inmate who claims that his death sentence “was improperly swayed by anti-gay prejudice.”
  • For The New York Times, Adam Liptak reports that Dassey v. Dittman, a cert petition filed by one of the subjects of the Netflix documentary series “Making a Murderer” that the justices will take up at their conference on Thursday, could allow court “to consider mounting evidence that false confessions from juveniles play a role in a disproportionate share of wrongful convictions.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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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Menu of today’s content

Menu of today’s contentToday the Supreme Court released orders and opinions in Murphy v. NCAA, Dahda v. U.S., McCoy v. Louisiana, Byrd v. U.S. and U.S. v. Sanchez-Gomez. The transcript of today’s live blog of the announcements is available at this link. This post provides an overview of today’s case coverage. 11:31 a.m. (updated at 3:19 p.m.): Amy Howe analyzed the opinion in Murphy v. National Collegiate […]

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Menu of today’s content

Today the Supreme Court released orders and opinions in Murphy v. NCAADahda v. U.S.McCoy v. LouisianaByrd v. U.S. and U.S. v. Sanchez-Gomez. The transcript of today’s live blog of the announcements is available at this link. This post provides an overview of today’s case coverage.

11:31 a.m. (updated at 3:19 p.m.): Amy Howe analyzed the opinion in Murphy v. National Collegiate Athletic Association, in which the Supreme Court struck down a federal law that prohibited the states from legalizing sports gambling.

11:42 a.m. (updated at 4:18 p.m.): Amy Howe analyzed the opinion in McCoy v. Louisiana, in which the Supreme Court threw out the conviction and death sentence of a Louisiana inmate whose attorney had conceded the inmate’s guilt to the jury over the inmate’s explicit objection.

12:07 p.m. (updated at 5:03 p.m.): Amy Howe analyzed the opinion in Byrd v. United States, in which the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car.

12:51 p.m.: Amy Howe reported on today’s orders, including the grants for next term in BNSF Railway Company v. Loos and Air and Liquid Systems Corp. v. Devries and the call for the views of the solicitor general in Osage Wind, LLC v. Osage Mineral Council.

2:39 p.m.: Howard Wasserman analyzed the opinion in United States v. Sanchez-Gomez, in which the Supreme Court held that an appeal involving a federal district-wide policy of shackling defendants during pretrial proceedings became moot when the defendants’ criminal cases ended before the appeals court could render a decision.

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Event Announcement: South Dakota v. Wayfair Webinar on April 17

Event Announcement: South Dakota v. Wayfair Webinar on April 17On April 17 at 1 p.m., the State and Local Legal Center will host a webinar titled, “Internet Sales Tax: From 1967 to Oral Argument in South Dakota v. Wayfair.” The webinar will feature Tillman Breckenridge and Bailey Glasser discussing what happened at oral argument earlier that morning. Registration instructions and more information are available […]

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Event Announcement: South Dakota v. Wayfair Webinar on April 17

On April 17 at 1 p.m., the State and Local Legal Center will host a webinar titled, “Internet Sales Tax: From 1967 to Oral Argument in South Dakota v. Wayfair.” The webinar will feature Tillman Breckenridge and Bailey Glasser discussing what happened at oral argument earlier that morning. Registration instructions and more information are available here.

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Event Announcement: WLF panel on OT 2017 at midpoint

Event Announcement: WLF panel on OT 2017 at midpointOn February 14 at 1 p.m., the Washington Legal Foundation will host a panel discussion entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2017 at Midpoint.” Panelists include Mark Perry, Catherine Carroll and Kevin McDonald; Amy Howe will moderate. The event will be live streamed at www.wlf.org and those interested in attending should […]

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Event Announcement: WLF panel on OT 2017 at midpoint

On February 14 at 1 p.m., the Washington Legal Foundation will host a panel discussion entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2017 at Midpoint.” Panelists include Mark Perry, Catherine Carroll and Kevin McDonald; Amy Howe will moderate. The event will be live streamed at www.wlf.org and those interested in attending should RSVP to glammi@wlf.org.

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Academic highlight: Substantive canons in the Roberts court

Academic highlight: Substantive canons in the Roberts courtAnita S. Krishnakumar is a professor of law and the associate dean for faculty scholarship at St. John’s University School of Law. Substantive canons of statutory construction — such as the rule of lenity or the canon of constitutional avoidance — sometimes play a pivotal role in the Supreme Court’s statutory interpretation cases. As a […]

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Academic highlight: Substantive canons in the Roberts court

Anita S. Krishnakumar is a professor of law and the associate dean for faculty scholarship at St. John’s University School of Law.

Substantive canons of statutory construction — such as the rule of lenity or the canon of constitutional avoidance — sometimes play a pivotal role in the Supreme Court’s statutory interpretation cases. As a result, these canons have received a lot of attention from statutory interpretation scholars and court commentators. The conventional wisdom is that textualist judges, in particular, tend to invoke substantive canons often — both in order to mitigate the rigors of textualism and to provide context that such judges lack because of their refusal to consult legislative history.

Perhaps the most notorious recent invocations of substantive canons occurred in NFIB v. Sebelius and Northwest Austin Municipal Utility District No. 1 v. Holder, two high-profile cases of the last decade in which a majority of the court relied on the canon of constitutional avoidance to interpret the Affordable Care Act and the Voting Rights Act, respectively. The canon of constitutional avoidance directs that when a statute is susceptible of two constructions, one that gives rise to grave and doubtful constitutional questions and another that avoids such questions, the court should adopt the construction that avoids the constitutional questions. NFIB and Northwest Austin have become infamous because in both cases the Supreme Court adopted statutory readings that were difficult to square with the statutes’ text, relying on the need to avoid “grave” constitutional infirmities to justify its strained interpretations.

In a recent article, I argue that notwithstanding high-profile cases like NFIB and Northwest Austin, substantive canons have performed far less work in the Roberts court’s statutory interpretation cases than scholars and commentators have suggested. The article, published in the University of Chicago Law Review, draws on data from an empirical study of every statutory interpretation case decided by the Roberts court between 2006 and 2012 (296 cases in total). The data show that, contrary to popular belief, substantive canons have been invoked only infrequently by the Roberts court — that is, in only 14.4 percent of the 603 separate opinions authored in the 296 statutory cases decided during the six-and-a-half terms studied. The only interpretive resource cited less often by the court during that time period was the common law, which was referenced in just 11.4 percent of the opinions. By comparison, Supreme Court precedent was cited in 52.6 percent of the opinions studied; the plainness of the statutory text was cited in 44.8 percent of the opinions; the practical consequences that would follow from an interpretation were cited in 33.7 percent of the opinions; and language canons including the whole act rule were cited in 32.3 percent of the opinions.

Perhaps most interestingly, even when the members of the Roberts court did invoke a substantive canon in a statutory interpretation case, the canon rarely played an outcome-determinative role in the court’s statutory construction. Indeed, fewer than 30 percent of the opinions that invoked a substantive canon (or roughly 4 percent of the 603 opinions authored during the relevant time period) relied primarily on the substantive canon to construe the relevant statute. Rather, the vast majority of the small percentage of cases that referenced a substantive canon did so only in a passing, or secondary, manner, not in the primary manner made infamous by NFIB and Northwest Austin.

Equally interesting is that despite Justice Antonin Scalia’s decades-long crusade against the use of legislative history in statutory interpretation — and despite numerous scholars’ gloomy warnings that substantive canons have replaced legislative history as the go-to resource for deciphering ambiguous statutory text — legislative history references have far outpaced substantive canon use on the Roberts court (at a rate of 25.0 percent versus 14.4 percent during the period studied). Significantly, most of the justices who served on the Roberts court during the period studied (eight of 11) referenced legislative history at noticeably higher rates than they referenced substantive canons. Even the court’s most vocal textualist justices — including Scalia — rarely invoked substantive canons in the opinions they authored. In fact, Scalia invoked substantive canons at almost the same rate (11.0 percent) at which he invoked legislative history (9.8 percent) — an interpretive resource he considered illegitimate.

The article also challenges several other assumptions made by scholars and court-watchers. The conventional wisdom is that substantive canons serve as unpredictable interpretive trump cards, the equivalent of a rabbit pulled out of a hat by judges seeking to reject the statute’s plain meaning or congressional intent in favor of a reading they like better. Scholars have pointed out that substantive canons are countermajoritarian, subject to judicial invention and reinvention, and difficult for Congress to overcome.

The Roberts court’s treatment of substantive canons calls all of these conventional assumptions into question. First, the members of the Roberts court were remarkably consistent and predictable in their use of substantive canons. Most of the cases that invoked a substantive canon referenced one of just six well-established canons — the avoidance canon, the rule of lenity, the presumption against pre-emption, a federalism clear-statement rule, the presumption against retroactivity, or the narrow construction of waivers of sovereign immunity. The substantive canons invoked in the other cases decided during the period studied also tended to be familiar ones; indeed, only four cases invoked a substantive canon that arguably could be called new (i.e., had not been referenced in any previous case).

Second, in the cases in which the Roberts court did rely primarily on a substantive canon, it often did so in order to honor, rather than undermine, congressional intent. For example, in Skilling v. United States, the court’s majority opinion used the avoidance canon to honor a congressional override of one of the court’s previous decisions, McNally v. United States. McNally had reversed decades of lower court precedent by interpreting the mail and wire fraud statutes not to criminalize honest-services-based fraud, such as kickback and bribery schemes. Congress quickly overrode McNally, enacting a new statute that was expressly designed to cover the “intangible right of honest services” that lower courts had protected prior to McNally. Skilling was an Enron executive charged with investment fraud under the new statute; he challenged the statute as unconstitutionally vague. The Roberts court acknowledged that Skilling’s vagueness challenge had merit, but invoked the avoidance canon to construe the statute narrowly, to avoid covering conduct such as Skilling’s. Specifically, the court observed that the history of Supreme Court-Congress interactions demonstrated that Congress intended the new statute to incorporate the honest-services doctrine that had been recognized for years before McNally was decided. It then found that although the pre-McNally case law was inconsistent about the outer reaches of the honest-services doctrine, the “vast majority” of honest-services cases decided before McNally involved offenders who had participated in bribery or kickback schemes, in violation of a fiduciary duty. In order to “preserve the statute without transgressing constitutional limitations,” the court thus read the new law to criminalize only the bribe-and-kickback core of the pre-McNally case law and not to apply to investment frauds such as that committed by Skilling.

Finally, contrary to the prevailing perception that substantive canons empower judges to decide cases based on their individual policy preferences, the data show that the conservative justices on the Roberts court invoked substantive canons to support liberal outcomes nearly as often as, and in some cases more often than, they invoked such canons to support conservative outcomes. Specifically, Justices Scalia and Clarence Thomas invoked substantive canons to support liberal outcomes almost as often as they invoked substantive canons to support conservative outcomes (with differentials of only one or two cases); and Chief Justice John Roberts and Justice Anthony Kennedy invoked substantive canons to support liberal outcomes more often than they invoked substantive canons to support conservative outcomes. The liberal justices, by contrast, invoked substantive canons more predictably — to support liberal outcomes in the vast majority of cases.

Ultimately, the data from the Roberts court’s first several terms reveal that many common assumptions about the Supreme Court’s use of substantive canons in statutory interpretation cases turn out to be incorrect — or at least overstated — when examined empirically. Although there are certainly some statutory cases in which substantive canons have played a pivotal, outcome-determinative role, the impression of rampant substantive canon use created by a handful of high-profile cases such as NFIB and Northwest Austin is misleading. Indeed, the data from the Roberts court suggest that substantive canons have received a bit of a bum rap from legal scholars — and that they perhaps are neither as prevalent nor as inherently dangerous as scholars have made them out to be.

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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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