Tuesday round-up

Tuesday round-upYesterday, on their last day on the bench for October Term 2016, the justices agreed to review two challenges to the Trump administration’s entry ban in October and partially lifted the injunctions against enforcement of the ban. Coverage comes from Matt Ford in The Atlantic, Nina Totenberg at NPR (audio), David Savage in the Los […]

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Tuesday round-up

Yesterday, on their last day on the bench for October Term 2016, the justices agreed to review two challenges to the Trump administration’s entry ban in October and partially lifted the injunctions against enforcement of the ban. Coverage comes from Matt Ford in The Atlantic, Nina Totenberg at NPR (audio), David Savage in the Los Angeles Times, Jordan Fabian at The Hill, Politico, Gary Gately at Talk Media News, and Evan Bush in The Seattle Times. At The Washington Post, Darla Cameron and Kim Soffen analyze the court’s ruling, as does Steven Mazie in The Economist. In The New York Times, Michael Shear answers a variety of questions about today’s ruling, and Jayashri Srikantiah does the same for Stanford Law School’s Legal Aggregate blog. Bloomberg has an audio interview discussing the ruling. Commentary comes from Garrett Epps in The Atlantic, Noah Feldman at Bloomberg View, Aaron Blake in The Washington Post, Ruthann Robson at the Constitutional Law Prof Blog, Jack Goldsmith at Lawfare, Ryan Lockman at Lock Law Blog, Ilya Shapiro at the Cato Institute’s Cato at Liberty blog, Richard Primus at Politico Magazine, Michael Bobelian at Forbes, Adam Cox at Just Security, Shoba Wadhia at the ACS Blog, Rick Hasen at the Election Law Blog, Josh Blackman at his eponymous blog, and Ken Jost at Jost on Justice.

The court also issued opinions in four argued cases. In Trinity Lutheran Church v. Comer, the justices ruled that a state cannot deny a church a public benefit – here, improvements to a playground – because of the church’s religious status. Mark Walsh covers the decision for Education Week’s School Law Blog. Additional coverage comes from Nina Totenberg at NPR, Emma Green in The Atlantic, Scott Bomboy at Constitution Daily, Chris Geidner at BuzzFeed, Gary Gately at Talk Media News, and Tony Mauro in The National Law Journal. Commentary comes from Eric Segall at Dorf on Law, Noah Feldman at Bloomberg View, Brian Miller at Forbes, Rick Hills at PrawfsBlawg, Ruthann Robson at the Constitutional Law Prof Blog, Michael McShane at the Show-Me Institute, Lyman Stone at Vox, Thomas Berg at Mirror of Justice,

In Davila v. Davis, the justices held that ineffective postconviction counsel does not excuse procedural default of a claim that a prior appellate lawyer was ineffective. Commentary comes from David Alan Slansky at Stanford Law School’s Legal Aggregate Blog.

The justices held in California Public Employees’ Retirement System v. ANZ Securities that a securities-class-action member cannot file his or her own opt-out suit after the statute of repose has run. Ronald Mann has this blog’s opinion analysis. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Tony Mauro covers the ruling for The National Law Journal (subscription or registration required), as does Alison Frankel at Reuters. Commentary comes from Joshua Yount at Mayer Brown’s Class Defense Blog and from Brian Wolfman at Public Citizen’s Consumer Law and Policy Blog.

In Hernandez v. Mesa, the justices vacated a ruling against the plaintiffs in a cross-border shooting case and remanded the case for the lower court to reconsider in light of a ruling last week that limited the ability to sue federal officials for damages under the Constitution. Amy Howe analyzes the ruling for this blog. Additional coverage comes from Lawrence Hurley at Reuters and Gary Gately at Talk Media News. Commentary comes from Ryan Lockman at Lock Law Blog.

The justices also ordered reargument in two immigration cases, Jennings v. Rodriguez, involving immigrant detention, and Sessions v. Dimaya, which involves the constitutionality of a criminal-removal provision in the immigration laws. Kevin Johnson discusses these developments for this blog.

Yesterday’s orders list also featured some notable developments, which Amy Howe covers for this blog here and here. In Pavan v. Smith, the justices summarily ordered Arkansas to provide names of same-sex partners on birth certificates. The court also agreed to review a case that involves the right of private parties to deny services to same-sex couples, particularly in industries involving expression. Coverage comes from David Savage in the Los Angeles Times, Tony Mauro in The National Law Journal (subscription or registration required), and Gary Gately at Talk Media News. Commentary comes from Walter Olson at the Cato Institute’s Cato at Liberty blog, Ruthann Robson at the Constitutional Law Prof Blog, Rick Hills at PrawfsBlawg,

Another new case for next term involves the whistleblower provisions of the 2010 Dodd-Frank financial law. Greg Stohr covers the grant for Bloomberg, as does Sarah Lynch at Reuters. Commentary comes from Asher Steinberg at The Narrowest Grounds. And the court declined to to review a case involving right to carry guns outside the home. Coverage comes from David Savage in the Los Angeles Times and Gary Gately at Talk Media News.

Coverage of Justice Neil Gorsuch’s debut this term comes from Lawrence Hurley and Andrew Chung at Reuters and from Ariane de Vogue at CNN, while commentary comes from Oliver Roeder and Harry Enten at FiveThirtyEight, Ashley Dejean at Mother Jones, Scott Lemieux at Democracy, Mark Joseph Stern at Slate, and Rick Hasen at the Election Law Blog.

Commentary on Murr v. Wisconsin, last week’s regulatory-takings decision, comes from Ilya Somin at The Washington Post’s Volokh Conspiracy blog, Jonathan Wood at FREEcology, Jeffrey Mandell at StaffordRosenbaum’s Appellate Practice blog, and Seth Jaffe at Foley Hoag’s Law and the Environment blog.

Analysis of the term comes from Adam Winkler in The Washington Post. In The National Law Journal (subscription or registration required), Tony Mauro looks at this term’s key business cases. At his eponymous blog, John Q. Barrett compares yesterday’s final opinion day with one in 1950, when the justices handed down decisions in 17 cases.

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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Afternoon round-up: Today’s orders and opinions

Afternoon round-up: Today’s orders and opinionsThis morning the court issued final opinions of the term and orders in a number of cases, including the travel-ban cases. In Trinity Lutheran v. Comer, the court held that the state cannot deny a church a public benefit because of its religious status. Early coverage comes from Amy Howe for this blog; Nina Totenberg […]

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Afternoon round-up: Today’s orders and opinions

This morning the court issued final opinions of the term and orders in a number of cases, including the travel-ban cases. In Trinity Lutheran v. Comer, the court held that the state cannot deny a church a public benefit because of its religious status. Early coverage comes from Amy Howe for this blog; Nina Totenberg of NPR; Pete Williams of NBC News; Lydia Wheeler of The Hill; Ariane de Vogue and Daniella Diaz of CNN; Adam Liptak of The New York Times; Lawrence Hurley of Reuters; Richard Wolf of USA Today; Robert Barnes of The Washington Post; Benjamin Wermund and Caitlin Emma of Politico; Greg Stohr and David McLaughlin of Bloomberg; Debra Cassens Weiss of ABA Journal; and Barnini Chakraborty of Fox News.

Commentary on the ruling comes from Tara Isabella Burton of Vox; Emma Green of The Atlantic; Steven Ertelt of LifeNews; and Neal McCluskey for Cato.

The court ordered reargument in cases involving immigrants’ bond hearings and the vagueness of crime of violence in the immigration laws, and vacated and remanded a cross-border shooting case. Coverage of these cases come from John Burnett and Merrit Kennedy of NPR, as well as Richard Gonzales; Richard Wolf of USA Today; Greg Stohr of Bloomberg; Mollie Reilly of Huffington Post; Debra Cassens Weiss of ABA Journal; and commentary coming from Kevin Johnson for ImmigrationProf Blog.

The court agreed to review the administration’s entry ban and lifted part of the injunction against it. Early coverage comes from Amy Howe for this blog; Joel Rose and Bill Chappell of NPR; Pete Williams of NBC News; Lydia Wheeler of The Hill; Ariane de Vogue of CNN; Adam Liptak of The New York Times; Lawrence Hurley and Andrew Chung of Reuters; Richard Wolf and Alan Gomez of USA Today; Brent Kendall of The Wall Street Journal; Robert Barnes of The Washington Post; David Savage of the LA Times; Chris Geidner of Buzzfeed; Josh Gerstein of Politico; Greg Stohr of Bloomberg; Willa Frej and Roque Planas of Huffington Post; Debra Cassens Weiss of ABA Journal; Mark Joseph Stern of Slate; Matt Ford of The Atlantic; and Bill Mears of Fox News.

Commentary on today’s travel-ban ruling comes from Dara Lind and Tara Golshan of Vox; Ian Millhiser of ThinkProgress; Marty Lederman for Just Security; and Leah Litman of Take Care Blog.

The court also agreed to review the right of private parties to deny services to same-sex couples. Coverage comes from Pete Williams of NBC News; Lydia Wheeler of The Hill; Ariane de Vogue and Daniella Diaz of CNN; Adam Liptak of The New York Times; Lawrence Hurley of Reuters; Richard Wolf of USA Today; Jess Bravin of The Wall Street Journal; Robert Barnes of The Washington Post; David Savage of the LA Times; Josh Gerstein of Politico; Willa Frej of Huffington Post; Debra Cassens Weiss of ABA Journal; Bill Mears of Fox News; and Mark Joseph Stern of Slate; with commentary coming from German Lopez of Vox and Ian Millhiser of ThinkProgress.

The court also ordered Arkansas to permit names of same-sex partners on birth certificates, with coverage coming from Richard Wolf of USA Today; Greg Stohr of Bloomberg; Debra Cassens Weiss of ABA Journal; and Mark Joseph Stern of Slate.

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Monday round-up

Monday round-upThis morning the court will release orders from its final scheduled conference of the term last Thursday, as well as opinions in any remaining cases in which it has reached a decision. Amy Howe highlights the six cases left from this term’s argument docket for this blog. At Constitution Daily, Lyle Denniston reports that the […]

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Monday round-up

This morning the court will release orders from its final scheduled conference of the term last Thursday, as well as opinions in any remaining cases in which it has reached a decision. Amy Howe highlights the six cases left from this term’s argument docket for this blog. At Constitution Daily, Lyle Denniston reports that the “fate of President Trump’s controversial executive order putting limits on immigration of foreign nationals” offers the “prospect of a headline-making finish.” Additional  looks at the business pending before the court come from Steven Mazie at The Economist’s Espresso blog, Lawrence Hurley at Reuters, and Constitution Daily. Slate’s Breakfast Table forum features an array of comments on the end of the term.

The much-bruited possibility that Justice Anthony Kennedy will retire prompts coverage from Mark Sherman at the Associated Press, Ariane de Vogue at CNN, Max Greenwood at The Hill, Mary Kay Linge at The New York Post, and Daniel Politi at Slate. But, based on reports from Saturday night’s Kennedy law clerk reunion, David Lat at Above the Law and Jess Bravin in The Wall Street Journal cast doubt on the prevailing rumors.

Last Friday, in an extra session, the justices handed down decisions in three more cases. Mark Walsh provides a “view” from the courtroom for this blog. The first decision was in Perry v. Merit Systems Protection Board, in which the justices held that district court is the proper forum for a “mixed” case, involving both adverse action and discrimination, that is dismissed by the MSPB on jurisdictional grounds. Howard Wasserman has this blog’s opinion analysis. At his eponymous blog, Ross Runkel notes that “Justice Gorsuch filed a cogent and revealing dissent.”

In Murr v. Wisconsin, the court employed a multi-factor analysis to uphold a lower court’s ruling that the two contiguous lots at issue in the case should be considered as one parcel, and that no regulatory taking had occurred. Miriam Seifter analyzes the opinion for this blog. In The Wall Street Journal, Jess Bravin reports that the decision “fortified environmental land-use regulations against legal challenges, frustrating property-rights activists who hoped their test case would open a host of development restrictions to constitutional attack.” For the Milwaukee Journal Sentinel (via the USA Today Network), Bruce Vielmetti reports that “[t]he decision did not provide the clear guidance many in the development industry had hoped it would.” Additional coverage comes from Greg Stohr at Bloomberg, Andrew Chung at Reuters, Scott Bomboy at Constitution Daily, and Nina Totenberg at NPR. At the Cato Institute’s Cato at Liberty blog, Roger Pilon argues that “[p]roperty owners have long suffered under the Supreme Court’s erratic rulings,” a situation that “got worse [on Fri]day.” At PrawfsBlawg, Rick Hills maintains that “[c]ases like Murr merely ratify what we already really know: When it comes to property in land, the states are inevitably in charge, and it is there that we libertarians ought to direct our energies.”

The last decision on Friday was in Lee v. United States, in which the court held that a defendant had been prejudiced by his attorney’s erroneous advice that a guilty plea would not result in mandatory deportation. Amy Howe has this blog’s opinion analysis. Additional coverage comes from Robert Barnes in The Washington Post, Lawrence Hurley at Reuters, and Adam Liptak in The New York Times. At the ImmigrationProf Blog, Kevin Johnson observes that this decision “continues a trend in which the Court has shown a willingness to protect the rights of immigrants and to apply standard constitutional doctrines to protect the rights of immigrants, in this case the right to effective assistance of counsel.” Kent Scheidegger looks at the decision at Crime and Consequences. At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro weighs in on Murr and Lee.

At NPR, Nina Totenberg reports on the court’s decision last week in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen, observing that the court noted that a contrary ruling “would mean that a lie told in the naturalization process, even out of embarrassment, fear or a desire for privacy, would always provide a basis for rescinding citizenship.” Additional coverage comes from Adam Liptak in The New York Times. Matt Ford looks at the decision in The Atlantic, maintaining that “[h]ad the Court ruled the other way, it could have opened the doors for federal prosecutors to imperil the citizenship of tens of thousands of Americans for innocuous errors made decades earlier.” In a column for Bloomberg View, Noah Feldman argues that although the court’s decision “bucks the anti-immigration trend by making it harder than before to strip immigrants of their citizenship status,” it “further weakens the basic norm of truth-telling.”

At the Associated Press, Mark Sherman reports that the “Supreme Court has almost certainly decided what to do about President Donald Trump’s travel ban affecting citizens of six mostly Muslim countries,” and that the “court’s decision could come any time and is expected no later than late [this] week, after which the justices will scatter for speeches, teaching gigs and vacations.” At Take Care, Jim Oleske contends that in its briefing in the entry-ban litigation, the federal government failed to account for the fact that it has previously taken a position contrary to its current contention “that courts should not consider campaign statements and other unofficial statements when deciding if a government policy has a discriminatory purpose.”

At Empirical SCOTUS, Adam Feldman assesses the available data about Justice Neil Gorsuch’s approach to Supreme Court judging and looks at the early performances of Justices Antonin Scalia and Clarence Thomas, concluding that “we may see Justice Gorsuch strengthen the coalitions he has already participated in and continue to make narrow decisions based predominantly on his readings of the plain text of statutes.” At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler asserts that Gorsuch’s “three opinions … show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues.”

Briefly:

  • At Legal Sports Report, Daniel Wallach explains why he thinks the court will agree to review a cert petition stemming from New Jersey’s attempt to legalize sports betting that asks “whether a federal statute … that prohibits a modification or ‘repeal’ of state law prohibitions on private conduct (i.e., sports betting) impermissibly commandeers the regulatory power of the States, in contravention of the Tenth Amendment of the US Constitution.”
  • The Daily Journal’s Weekly Appellate Report podcast features discussions of last week’s personal-jurisdiction decision and a concurrence by Justice Clarence Thomas in a recent decision limiting the ability of post-9/11 detainees to sue federal officials under the Constitution.
  • In The Atlantic, Matt Ford looks at this term’s death-penalty cases, concluding that “death-penalty opponents achieve[d] some notable victories even as the Court moved further away from abolishing capital punishment.”
  • In an op-ed in The Wall Street Journal, Daniel Henninger weighs in on Matal v. Tam, in which the justices held last week that a ban on the registration of disparaging trademarks violates the First Amendment, arguing that the decision “won’t stop the political coercion cops, who are still deploying intimidation and shaming tactics beyond the reach of the courts and Constitution.”
  • At Jost on Justice, Ken Jost argues that with its decision last week in Ziglar v. Abassi limiting the right to sue federal officials under the Constitution, “a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card.”
  • For Capitol Media Services (via Pinal Central), Howard Fischer reports that a ruling in Hernandez v. Mesa today would affect another cross-border shooting case pending in the U.S. Court of Appeals for the 9th Circuit.
  • In The National Law Journal (subscription or registration required), Tony Mauro offers some Supreme Court-related beach reading, observing that with “all the dramatic recent twists and turns at the Supreme Court, fiction is getting closer and closer to real life.”
  • At The A.V. Club, Laura Browning reports that two Supreme Court justices have now diverged on the earth-shaking issue of whether to capitalize “internet.”

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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Friday round-up

Friday round-upAs the Supreme Court term draws to a close, the justices have stepped up their output, holding an extra session yesterday to release opinions in three cases. Mark Walsh provides a “view” from the courtroom for this blog. At Crime and Consequences, Kent Scheidegger notes that the “theme out of the United States Supreme Court […]

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Friday round-up

As the Supreme Court term draws to a close, the justices have stepped up their output, holding an extra session yesterday to release opinions in three cases. Mark Walsh provides a “view” from the courtroom for this blog. At Crime and Consequences, Kent Scheidegger notes that the “theme out of the United States Supreme Court [yesterday was] materiality.”

The first decision was in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen. Amy Howe has this blog’s argument analysis. At Reuters, Lawrence Hurley reports that the justices “rejected the Trump administration’s stance that the government should be able to revoke citizenship of people for even minor misstatements in the citizenship application process.” Additional coverage comes from Lydia Wheeler at The Hill and Robert Barnes at The Washington Post. At The Narrowest Grounds, Asher Steinberg takes issue with Justice Samuel Alito’s concurring opinion, responding to two hypotheticals Alito employs to demonstrate that “materiality need not be causal,” but rather that “the illegal act … need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.”

In Turner v. United States, the court upheld the convictions of the defendants in a notorious murder trial concluding that evidence withheld from the defense would not have affected the outcome of the trial. Amy Howe analyzes the opinion for this blog. In The Washington Post, Robert Barnes reports that “Justice Stephen G. Breyer wrote that it was not reasonable to think that the withheld evidence — that a man convicted of similar crimes had been seen in the area — would have made a difference.”

Yesterday’s final decision was in Weaver v. Massachusetts, which held that excluding the public from jury selection did not invalidate a conviction because the defendant did not show that he was prejudiced by the exclusion. Rory Little has this blog’s argument analysis.

The Heritage Foundation’s SCOTUS 101 podcast features a discussion of Matal v. Tam, in which the justices held on Monday that a ban on the registration of disparaging trademarks violates the First Amendment. At Dorf on Law, Michael Dorf observes that “[t]hanks to Matal, the government speech doctrine will not swallow the First Amendment,” and he explores the implications of the decision for “claims to opt out of general obligations such as those imposed by antidiscrimination law” “in which an opt-out was asserted as a matter of free speech.”

At Take Care, David Gans weighs in on Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, arguing that “Ziglar offers a thin, unconvincing view of separation of powers that never takes seriously that the judiciary has an affirmative role to play in the Constitution’s system.” At PrawfsBlawg, Richard Re observes that “critics of Abbasi have argued that Bivens is now ‘all but overruled’ and ‘all-but limited … to its facts.,” but notes that “similar claims have been made before—and will likely be made yet again,” and that if “Bivens has nine lives, it seems to have two or three left to go.”

Briefly:

  • Slate’s Breakfast Table forum offers commentary on the term’s cases from Walter Dellinger here and Pamela Karlan here.
  • In an op-ed in The New York Times, Linda Greenhouse looks at Justice Ruth Bader Ginsburg’s opinion for the court in Sessions v. Morales-Santana, which held that differential treatment of parents by gender in immigration law violates equal protection; Greenhouse maintains that the “ruling defied expectations in every way that counted and suggests a more complex picture of the Roberts court than its notably ideology-riven decisions usually offer.”
  • At the Sentencing Law and Policy blog, Douglas Berman weighs in The Washington Post Fact Checker’s assertion that a statement about sex-offender recidivism by Justice Samuel Alito in Packingham v. North Carolina was misleading, noting that “these are challenging issues to discuss with precision both conceptually and statistically,” and that “though I am always pleased to see detailed discussion of crime data in theWashington Post, I am troubled by its decision to ‘award Three Pinocchios’ to a statement that is factually true.”
  • The Nation features two articles examining the troubling aftermath of Montgomery v. Louisiana, in which the court 18 months ago gave retroactive effect to an earlier decision prohibiting mandatory life-without-parole sentences for juvenile offenders, by Jessica Pishko here and Danielle Wolffe here.
  • In Time, Thomas Wolf observes that the court’s ruling in Gill v. Whitford, a high-profile partisan-gerrymandering case the justices will consider next term, “will go a long way to determining whether you choose your representatives — or the other way around — and whether you’ll be able to hold them accountable when they put party agendas over your interests.”
  • In Mother Jones, Nathalie Baptiste discusses Ayestas v. Davis, in which the court will hear a death-row inmate’s argument that he was denied access to “state resources that should be made available to pay for experts or investigators.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald discuss two amicus briefs filed by Cato – one in support of a cert petition challenging California “commercial-fishing license fees that require nonresidents to pay several times more than residents” here, and another in support of a petition contesting Minnesota’s “unfettered confinement of sex offenders” here.

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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Thursday round-up

Thursday round-upAt his eponymous blog, Lyle Denniston reports that “[a]dministration lawyers submitted their final written arguments at midday Wednesday” in the government’s bid to reinstate its temporary ban on entry into the U.S. by nationals from six Muslim-majority countries and that in “a new legal point, they sought to rely on a two-day-old ruling by the […]

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Thursday round-up

At his eponymous blog, Lyle Denniston reports that “[a]dministration lawyers submitted their final written arguments at midday Wednesday” in the government’s bid to reinstate its temporary ban on entry into the U.S. by nationals from six Muslim-majority countries and that in “a new legal point, they sought to rely on a two-day-old ruling by the Justices to support their claim for vast power for the White House in national security actions.” Additional coverage of the government’s filing comes from Gary Gately at Talk Media News. At Take Care, Leah Litman maintains that “it doesn’t really matter whether the President issued the clarifying memorandum in response to the injunctions or possibility of mootness,” and that the “key point—and the problem for the administration—is that the entry procedures are not now, and perhaps were never formally linked to the government’s review of its entry procedures.” At Just Security, Marty Lederman points out that the government’s brief relies on the president’s “’national security judgment,’” but he argues that the president “merely issued a decree, complete with an ostensible ‘finding,’ manifestly designed solely to fulfill a campaign promise,” and that “[s]uch an ipse dixit does not a ‘national security judgment’ make–let alone one to which the Justices ought to afford significant deference.” At Constitution Daily, Scott Bomboy offers a rundown of the status of the litigation pending before the court and the issues in the cases.

In Democracy, Scott Lemieux discusses the court’s recent decision to review a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford, arguing that “[i]t is hard to see how districting that intentionally overrepresents one group of voters and underrepresents another can be constitutional under [the court’s] precedents” requiring that “legislative districts … be drawn to reflect a ‘one person, one vote’ standard.” At The American Prospect, Michael Li and Thomas Wolf maintain that “[a]lthough the courts have sometimes been hesitant to interfere with the political process, it turns out the problem is manageable,” because “it usually appears in places with a few key characteristics: single-party control of the mapping process and a roughly evenly split electorate.” In an op-ed in The Washington Post, Charles Lane agrees that “partisan districting creates anomalies and unfairness, breeding public cynicism about a ‘rigged system,’” but questions whether “the federal judiciary — meaning, ultimately, the Supreme Court — is the right institution to fix this.”

In The Economist, Steven Mazie reports that Matal v. Tam, in which the justices held on Monday that a ban on the registration of disparaging trademarks violates the First Amendment, “clarified that offensive or hateful speech falls squarely under the First Amendment umbrella.” At The Federalist, Ilya Shapiro argues that the ruling “boils down to the simple point that bureaucrats shouldn’t be deciding what’s ‘disparaging.’” At Balkinization, Marty Lederman offers a detailed critique of the two four-justice opinions in the case, concluding that “[p]erhaps a majority of the Court should have … simply held that the Constitution forbids the viewpoint-based manipulation of government subsidies when it is done—as the government concedes it was here—in an effort ‘to remove certain ideas or perspectives from a broader debate.’”

At Crime and Consequences, Kent Scheidegger considers Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, concluding that if “the approach of the four-Justice majority [three justices did not participate] is reaffirmed in the next case, then Bivens,” which allows such suits under certain circumstances, “is effectively frozen in ice.” At Lawfare, Steve Vladeck asks whether “[a]s a normative matter (that is, without regard to historical or doctrinal foundations), … Justice Kennedy’s case against judge-made damages remedies for constitutional violations [is] actually convincing.”

Briefly:

  • In The Washington Post’s Fact Checker column, Michelle Ye Hee Lee gives three Pinnochios to Justice Samuel Alito’s assertion in Packingham v. North Carolina that sex offenders have unusually high rates recidivism, finding the “reference to sex offender rearrest trends in Alito’s opinion is quite misleading.”

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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Wednesday round-up

Wednesday round-upCourt-watchers continue to discuss the Supreme Court’s recent announcement that it will hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. In The Economist, Steven Mazie notes that “the justices have looked the other way when oddly drawn districts clump voters based on party rather than race,” and that “[i]f the challenge to hyper-partisan […]

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Wednesday round-up

Court-watchers continue to discuss the Supreme Court’s recent announcement that it will hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. In The Economist, Steven Mazie notes that “the justices have looked the other way when oddly drawn districts clump voters based on party rather than race,” and that “[i]f the challenge to hyper-partisan line-drawing succeeds, the shape of districts to come may tighten the link between voters’ preferences and who gets elected.” Nina Totenberg reports on the case for NPR, pointing out that “Republicans have more to lose in next term’s case because they control state legislatures in many more states than the Democrats do, and they stand to maximize that advantage again after the 2020 census.” At the Cato Institute’s Cato at Liberty blog, Walter Olson observes that “the five-member majority to stay the Wisconsin order … suggests that at this point it is the conservative side’s case to lose.” Lisa Soronen discusses the case at the National Conference of State Legislatures’ blog, noting that the “challengers propose a standard for determining the influence of partisan gerrymandering in the district-drawing process” that is based on ‘wasted votes’–votes in each district cast for a non-winning party’s candidate.” At PrawfsBlawg, Daniel Rodriguez questions whether “we [can] truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics.” Additional commentary comes from John Nichols in The Nation and Ryan Lockman at Lock Law Blog.

At The Pacific Legal Foundation’s Liberty Blog, Caleb Trotter weighs in on the court’s holding Monday in Matal v. Tam, in which the justices held that a ban on the registration of disparaging trademarks violates the First Amendment, arguing that “the decision reaffirms the First Amendment’s requirement of viewpoint neutrality when government attempts to regulate private speech.” In The Daily Signal, Elizabeth Slattery discusses the effect of the ruling on other cases involving offensive trademarks, such as the one brought by the Washington Redskins, noting that “[i]t would be hard to square a ruling against the Redskins [with] the Supreme Court’s full-throated defense of free speech.” Lisa Soronen looks at the case at the Council of State Governments’ Knowledge Center blog, noting that “the Supreme Court rejected the federal government’s claim that trademarks are government speech or a form of government subsidy.”

At NPR, Nina Totenberg reports on Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, observing that “[j]ust how far reaching the decision is, remains unclear.” At Stanford Law School’s Legal Aggregate blog, Shirin Sinnar argues that “[s]tepping back from the line of Bivens decisions that makes Abbasi seem normal, it’s striking how far we’ve departed from two very basic premises: first, that where there’s a constitutional right at stake, there ought to be a way to vindicate it, and second, that the very point of including guarantees of individual rights in the Constitution was to guard against legislative temptations to overlook them.” At Balkinization, Deborah Lind maintains that Abbasi “should not be, as some colleagues have suggested, … fodder for the broader debate … about whether and when the President’s reasoning is entitled to judicial deference in matters of national security.”

At Vox, Dara Lind discusses the challenges to the Trump administration’s temporary ban on entry into the U.S. by nationals of six Muslim-majority countries now pending before the court, maintaining that “[h]ow the Supreme Court feels about the ban itself isn’t yet clear, or even relevant,” and that the “question is how it feels about its own role in the fight over the ban — and whether that leads the justices to try to get the case over with, or to proceed with deliberate caution.” At Take Care, Leah Litman highlights an amicus brief opposing the government’s motion to freeze the injunctions preventing implementation of the entry ban; “the brief argues that the entry ban violates the Establishment Clause’s prohibition on animus toward particular religions.”

Briefly:

  • At The George Washington Law Review’s On the Docket blog, Alan Morrison looks at Monday’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, in which the justices reversed a state court finding of specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit, calling it the last in a series of recent rulings “that, taken together, have seriously limited the ability of plaintiffs to obtain personal jurisdiction over defendants in their preferred forum.”[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]
  • At the Pacific Legal Foundation’s Liberty Blog, Deborah LaFetra bemoans the court’s decision not to review a case that gives “a green light” to plaintiff “to pursue her ‘representative’ action against [a former employer] despite her written agreement to arbitrate any disputes that arose during the course of her employment,” arguing that “only the Supreme Court can remedy this hostility to arbitration that leads lower courts to treat contracts with arbitration provisions as poor relations.”

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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Tuesday round-up

Tuesday round-upYesterday the Supreme Court agreed to hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. The justices also granted Wisconsin’s request for a stay of a lower-court ruling requiring the state to implement a new districting map by next fall. They summarily reversed an appeals court grant of habeas corpus relief to a criminal […]

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Tuesday round-up

Yesterday the Supreme Court agreed to hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. The justices also granted Wisconsin’s request for a stay of a lower-court ruling requiring the state to implement a new districting map by next fall. They summarily reversed an appeals court grant of habeas corpus relief to a criminal defendant in Jenkins v. Hutton, and they asked for the views of the solicitor general in a bankruptcy case. Amy Howe covers the orders list for this blog. At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler notes that Jenkins continues a recent “trend” in which “the Supreme Court has repeatedly reversed the 6th Circuit in habeas cases, often without oral argument.”

In The Washington Post, Robert Barnes reports on Gill, noting that the “Supreme Court has never found a plan unconstitutional because of partisan gerrymandering,” and that “[i]f it does, it would have a revolutionary impact on the reapportionment that comes after the 2020 election.” In USA Today, Richard Wolf reports that “[w]hat’s different this time from past Supreme Court clashes is the existence of data-driven models to measure election results against other factors.” At Bloomberg, Greg Stohr notes that in voting “5-4 along ideological lines in a separate order” to grant Wisconsin’s request for a stay, “the justices sent a signal they may be skeptical of the challengers’ arguments.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak in The New York Times, Josh Gerstein at Politico, Lydia Wheeler at The Hill, Andrew Chung at Reuters, Ariane de Vogue and Daniella Diaz at CNN, BBC News, Gary Gately at Talk Media News, Sam Levine at The Huffington Post, Cameron Joseph in The New York Daily News, and Patrick Marley in the Milwaukee Journal Sentinel.

At the Election Law Blog, Rick Hasen observes that the “stay order raises a big question mark for those who think Court will use the case to rein in partisan gerrymandering.” In The Atlantic, Hasen notes that Gill brings “the partisan gerrymandering beauty pageant” back “to the Supreme Court … for a limited engagement for an audience of one: Justice Anthony Kennedy.” At Think Progress, Ian Millhiser points out that the court postponed consideration of its jurisdiction over the case until it hears the case on the merits, “suggesting that many of the Court’s members think that federal courts do not have the power to hear gerrymandering cases.” More commentary and analysis come from Stephen Wolf in the Daily Kos, Vann Newkirk II in The Atlantic and Dylan Matthews at Vox.

In The Hollywood Reporter, Eriq Gardner reports that the court “has finally decided that it won’t review Lenz v. Universal Music Corp., a case examining the circumstances by which copyright holders can get into trouble when issuing takedown notices.” At Reuters, Lawrence Hurley reports on another cert denial, noting that the justices “handed a victory to Chevron Corp by preventing Ecuadorean villagers and their American lawyer from trying to collect on an $8.65 billion pollution judgment issued against the oil company by a court in Ecuador.” Additional coverage of the Ecuador decision comes from Devin Henry at The Hill.

The justices also issued five decisions yesterday. Mark Walsh has a “view” from the courtroom for this blog. In Matal v. Tam (formerly called Lee v. Tam), the court held that the disparagement clause of the Lanham Act, which governs the registration of trademarks, violates the First Amendment. Amy Howe has this blog’s opinion analysis; the blog is also hosting a symposium on the decision. At Politico, Josh Gerstein reports that “[t]he result in the closely-watched case could doom legal challenges to other trademarks many consider offensive, such as that for the Washington Redskins football team,” but notes that “no majority of the court agreed on precisely what legal standard to apply in the case.” Additional coverage comes from Fox News, Adam Liptak in The New York Times, Tony Mauro in The National Law Journal (subscription or registration required), Andrew Chung at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Gary Gately at Talk Media News, and Lyle Denniston at his eponymous blog. Commentary comes from Matt Ford in The Atlantic; Ilya Shapiro at the Cato Institute’s Cato at Liberty blog; Eugene Volokh at the Washington Post’s Volokh Conspiracy, here and here; Ruthann Robson at the Constitutional Law Prof Blog; Erica Goldberg at In a Crowded Theater; and the editorial board of The Washington Post.

In Packingham v. North Carolina, another First Amendment ruling, the court struck down a North Carolina law that barred sex offenders from accessing social-media sites that allowed minors to create accounts. Amy Howe analyzes the opinion for this blog. At his eponymous blog, Lyle Denniston reports that the “three Justices who did not support the main opinion agreed that the state law at issue ‘has a staggering reach’ and .. was invalid,” but “they voiced worry that the lead opinion, written by Justice Anthony M. Kennedy, had been ‘undisciplined’ in its discussion of how far the First Amendment goes to protect expression via the Internet.” Additional coverage comes from Mark Walsh at Education Week’s School Law Blog, Lawrence Hurley at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, and Gary Gately at Talk Media News. Commentary comes from Ed Mannino at his eponymous blog, Stuart Benjamin at The Washington Post’s Volokh Conspiracy blog, Ruthann Robson at the Constitutional Law Prof Blog, and Ilya Shapiro in an op-ed in the Washington Examiner. Howard Wasserman and Rick Garnett look at both of today’s First Amendment decisions at PrawfsBlawg, here and here, respectively.

Yesterday’s third opinion was in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks. This blog’s opinion analysis comes from Amy Howe. At Politico, Josh Gerstein reports that the majority held that “a suit for money damages in such circumstances could not proceed without authorization from Congress.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak at The New York Times, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Lawrence Hurley at Reuters, who reports that Justice Stephen Breyer “took the relatively unusual step of reading his dissent from the bench.”

At Dorf on Law, Michael Dorf observes that yesterday’s ruling in Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages.” In The Atlantic, Garrett Epps argues that the “verdict could have significant implications for  the case testing the Trump administration’s ‘travel ban’ barring entry of persons from six majority-Muslim countries, which just arrived in the court’s in-basket.” At Just Security, Steve Vladeck maintains that “Abbasi is perhaps the most important case the Court has decided so far this Term, and one of the most important it has handed down with regard to remedies for unconstitutional federal government conduct in decades,” “[a]nd [that] it’s terribly unconvincing, in the process.” At PrawfsBlawg, Howard Wasserman weighs in on the decision here, and Will Baude looks at Justice Clarence Thomas’ separate opinion, in which Thomas expressed “skepticism … about the doctrine of qualified immunity,” here.

In McWilliams v. Dunn, the court found that Alabama had denied a death-penalty defendant the expert mental-health assistance to which he was entitled under the standard the court established in Ake v. Oklahoma. Amy Howe has this blog’s opinion analysis. In The Wall Street Journal, Jess Bravin reports that the “5-4 decision, dividing largely along ideological lines, stopped short of declaring that defendants have a constitutional right to place such experts on their legal teams, the issue the court initially agreed to decide, leaving dissenters fuming that the majority flouted court rules to reach its consensus.” Additional coverage comes from Lawrence Hurley at Reuters, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Adam Liptak at The New York Times. Commentary comes from David Alan Sklansky at Stanford Law School’s Legal Aggregate blog.

And in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the justices reversed a state court finding of specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit.  Ronald Mann analyzes the opinion for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]  At Bloomberg, Greg Stohr reports that the decision “gave companies a new tool to defeat some legal claims.” Additional coverage comes from Andrew Chung at Reuters and Tony Mauro in The National Law Journal (subscription or registration required). At Mayer Brown’s Class Defense Blog, Andrew Pincus and others maintain that “the decision raises substantial questions about whether nationwide class actions can proceed in jurisdictions where a defendant is not subject to general jurisdiction.” PrawfsBlawg has commentary on the decision from Howard Wasserman here, Stephen Sachs here, and Cassandra Robertson here. Additional commentary comes from Walter Olson at the Cato Institute’s Cato at Liberty blog.

Briefly:

  • At Just Security, Marty Lederman weighs in on the entry-ban cases, offering “three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.”
  • At Empirical SCOTUS, Adam Feldman analyzes data from this term related to the frequency, duration and timing of the justices’ questions and comments at oral argument.
  • At Capital Appellate Advocacy’s Insights blog, Lawrence Ebner calls Justice Neil Gorsuch’s first opinion for the court last week “a model of both outstanding  judicial opinion writing and judicial restraint,” which, “if [it] is predictive of what is to come, … already vindicates President Trump’s selection.”

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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Monday round-up

Monday round-upAmy Howe reports for this blog that the solicitor general’s office has performed an unusual about-face in National Labor Relations Board v. Murphy Oil USA, urging “the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.” At his eponymous blog, Ross […]

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Monday round-up

Amy Howe reports for this blog that the solicitor general’s office has performed an unusual about-face in National Labor Relations Board v. Murphy Oil USA, urging “the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.” At his eponymous blog, Ross Runkel notes that in an amicus brief filed last week in the case and two other consolidated cases, which will be heard next term, the “government has disowned the … NLRB’s 2012 D.R. Horton rule that class action waiver agreements are illegal because they deny employees the statutory right to engage in concerted activities for mutual aid and protection.”

Counting to 5 (podcast) looks at Justice Neil Gorsuch’s first opinion for the court, in Henson v. Santander Consumer USA Inc., in which the court held that the Fair Debt Collection Practices Act does not apply to debt buyers. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] At Jost on Justice, Ken Jost argues that although “the reviews are mostly good,” “[o]n close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.”


Briefly:

  • At his eponymous blog, Sheldon Nahmod discusses the Supreme Court’s rejection in County of Los Angeles v. Mendez of the U.S. Court of Appeals for the 9th Circuit’s “provocation rule” in Section 1983 excessive-force suits against police officers, noting that the court concluded that “the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation,” and that the “results in individual cases will turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined.”
  • The Heritage Foundation’s Scotus 101 podcast features discussions of “Neil Gorsuch’s first opinion, other justices’ early opinions, and why the Supreme Court might hear the travel ban case this summer.”
  • In an op-ed at Motherboard, Steve Vladeck discusses Carpenter v. United States, in which the court will decide next term whether the Fourth Amendment requires that the government obtain a warrant for historical records showing where a cell phone connects with towers, observing that “[i]f, as the lower courts concluded in Carpenter, we have no expectation of privacy in historical [cell-site location information], then the government could theoretically keep near-constant tabs on every American who uses a cell phone—a rather Orwellian proposition, even by today’s standards.”
  • At PrawfsBlawg, Joe Miller looks at the “run of patent cases” at the Supreme Court since 1993, noting that “there is full Court agreement on largely unanimous rejection of Federal Circuit patent law decisions, even as it reviews those decisions more often,” and attributing this trend to “Legal Process reasoning ~ heavy reliance on stare decisis, and a keen appreciation for the different institutional roles that Congress and the courts play in providing settled ‘rules of the road.’”
  • At the Election Law Blog, Rick Hasen observes that the court may decide as early as today not only whether to grant review in Gill v. Whitford, “the constitutional challenge to Wisconsin legislative districting as a partisan gerrymander,” but whether to “stay[] a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018”; he concludes that “[a]s with many of these things, I expect this comes down to what Justice Kennedy wants to do.”

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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Friday round-up

Friday round-upYesterday marked the formal investiture of Justice Neil Gorsuch at the Supreme Court. Amy Howe and Mark Walsh cover the event for this blog. At USA Today, Richard Wolf reports that “the ritual was but a speed bump in a high court career that’s already off to a fast start.” In The New York Times, […]

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Friday round-up

Yesterday marked the formal investiture of Justice Neil Gorsuch at the Supreme Court. Amy Howe and Mark Walsh cover the event for this blog. At USA Today, Richard Wolf reports that “the ritual was but a speed bump in a high court career that’s already off to a fast start.” In The New York Times, Adam Liptak reports that “President Trump, who is awaiting word from the Supreme Court on the fate of his travel ban, paid his first visit to the court” for the ceremony. Additional coverage comes from Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Lawrence Hurley at Reuters and Robert Barnes in The Washington Post.

At The Hill, Lydia Wheeler reports that “[i]t’s decision time for the Supreme Court when it comes to President Trump’s travel ban,” and that the “justices in the coming days must decide whether to lift the temporary injunction on the ban and whether to hear the government’s appeal of lower court rulings that stopped the policy from taking effect.” At Take Care, Steve Vladeck and Leah Litman maintain that two developments on Wednesday in the entry-ban cases “de-couple the entry ban from the internal review procedures—and, in doing so, undermine (perhaps fatally) the government’s strongest arguments for the ban itself.” At Just Security, Marty Lederman explains “why, in light of the Ninth Circuit’s decision on Monday, there’s no good reason for the Court to grant any of the government’s petitions or applications.” Also at Take Care, Jim Oleske counters the government’s argument that the president’s campaign-trail statements cannot be considered in assessing the motives behind the entry ban by arguing that “the federal government itself has successfully relied upon campaign statements to demonstrate discriminatory purpose in litigation, and it has explicitly rejected the free speech chilling argument it now offers.” In National Review, Ramesh Ponnuru discusses a recent amicus brief filed by the Becket Fund for Religious Liberty that argues “that the Court should decide the case under the free-exercise clause rather than the no-establishment clause of the First Amendment.”

Briefly:

  • At the Election Law Blog, Rick Hasen notes that yesterday the court without comment denied a motion to have the mandate issued immediately in North Carolina v. Covington, in which the court vacated a district-court remedial order that had required special state elections, signaling, in his view, “that enough Justices on the Court see no urgent need for a special election in 2017,” and making it “exceedingly unlikely there could be a special election in November 2017.”
  • Constitution Daily’s We the People podcast features a discussion of the 50th anniversary of Loving v. Virginia, the landmark decision in which the Supreme Court held that laws banning interracial marriage are unconstitutional.
  • At PrawfsBlawg, Ian Samuel outlines his concerns about “the practice of ghost-writing briefs in opposition to certiorari,” concluding that“it is calculated to mislead the Supreme Court, and that it is—for that reason—unethical.”
  • At George Washington Law Review’s On the Docket blog, Alan Morrison discusses Microsoft Corp. v. Baker, in which the justices ruled this week that federal courts lack jurisdiction to review an order denying class certification after the plaintiffs have voluntarily dismissed the case with prejudice, observing that “[w]hat is most troubling is that there is no obvious and realistic avenue by which the denial of class certification can ever be raised in situations like this–and no Justice seemed to care.”
  • At PrawfsBlawg, Cassandra Robinson explores the “significant ramifications” of Peña-Rodriguez v. Colorado, in which the justices held earlier this term that evidence that a juror relied on racial stereotypes or animus to convict a criminal defendant trumps an evidentiary rule barring post-verdict testimony about statements made during jury deliberations.

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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Thursday round-up

Thursday round-upAt his eponymous blog, Lyle Denniston reports that “President Trump moved on Wednesday to keep his restrictions on immigration in operation, if the Supreme Court now allows government officials to start enforcing those limits,” by “extend[ing] the planned expiration dates for the restrictions” in a new presidential order. At Take Care, Leah Litman assesses the implications of […]

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Thursday round-up

At his eponymous blog, Lyle Denniston reports that “President Trump moved on Wednesday to keep his restrictions on immigration in operation, if the Supreme Court now allows government officials to start enforcing those limits,” by “extend[ing] the planned expiration dates for the restrictions” in a new presidential order. At Take Care, Leah Litman assesses the implications of the extension, arguing that “the President has now formally severed the link between the government’s review of its internal visa procedures and the entry ban itself,” and that “[a]s a result, the government has undermined its own oft-repeated rationale for the order: imposing a temporary bar on entry while it studied the issue and considered more comprehensive vetting procedures” and has “further weakened the claim that its entry ban is, or ever was, enacted for national security purposes.” At the Lock Law Blog, Ryan Lockman adds that the “DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited briefing, and then asking in mid-June for a two week delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.” At The Washington Post’s Volokh Conspiracy blog, Sam Bray examines the immigration-law justifications for the national injunctions issued in the entry-ban cases, concluding that “no one has shown any compelling reason to think the naturalization clause authorizes national injunctions.”

At Justia’s Verdict Blog, Michael Dorf observes that Monday’s decision in Sessions v. Morales-Santana, in which the justices held that differential treatment of parents by gender in immigration law violates equal protection, “has potentially important implications for other immigration issues,” including the entry-ban cases, noting that “[a]s the government lawyers who have been regularly losing in the lower courts in the travel ban litigation have been learning the hard way, ‘immigration’ is no longer a magic word that locks the courthouse doors shut.” At the Human Rights at Home blog, Rachel Rosenbloom argues that “reports of the death of the Plenary Power Doctrine are greatly exaggerated,” and maintains that there “are no indications that the case will have broad implications regarding the application of the immigration laws to noncitizens.”

At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”

Briefly:

  • At the Election Law Blog, Rick Hasen offers an abstract of a forthcoming article that discusses the court’s recent racial-gerrymandering decisions, noting that, given “the malleability of Supreme Court constitutional doctrine, especially in the area of election law,” “it would not be surprising to see a new, more conservative Supreme Court revert to its original treatment of the gerrymandering claim as a tool to limit minority voting power.”
  • In The American Prospect, David Dayen considers Henson v. Santander Consumer USA Inc., in which the court held that the Fair Debt Collection Practices Act does not apply to debt buyers, arguing that the decision “gave some of the worst bottom-feeders in the economy a free pass to break the law.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.]
  • At PrawfsBlawg, Howard Wasserman takes note of the lower court’s actions following the Supreme Court’s decision earlier this term in Goodyear Tire & Rubber Co. v. Haeger, involving the proper standard for assessing sanctions for bad-faith discovery misconduct; he reports that “theNinth Circuit remanded to the district court to redo the sanctions analysis, explicitly applying a but-for cause standard.”

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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