Monday round-up

Monday round-upAt Just Security, William Dodge discusses last week’s oral argument in Jesner v. Arab Bank, in which the justices considered whether corporations are liable under the Alien Tort Statute, explaining that “the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it […]

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Monday round-up

At Just Security, William Dodge discusses last week’s oral argument in Jesner v. Arab Bank, in which the justices considered whether corporations are liable under the Alien Tort Statute, explaining that “the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability.” Another look at the argument in Jesner comes from Kenneth Jost at Jost on Justice, who concludes that “[s]even years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad.”

Briefly:

  • At Empirical SCOTUS, Adam Feldman breaks down the track record before Supreme Court of the solicitor general’s office over time, concluding that “[l]ooking across the history of the office …, the OSG’s success during the Obama Administration was not only at a recent low, but also at a historic low.”
  • At the Florida Court Review, John Cavaliere looks at the cert petition in Truehill v. Florida, a challenge to Florida’s death-sentencing procedures that the justices considered at their conference last Friday, noting that “[t]he two questions before SCOTUS essentially ask whether the jury’s recommendation can be trusted in the first place,” because “the jury thought they were only giving a recommendation and that the judge would have the ultimate decision on sentencing” and “they weren’t required to vote on the specific aggravating factors.”
  • In an op-ed for BlueRidgeNow.com, Leroy Goldman looks at Gill v. Whitford, in which the court will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander, observing that “[i]f the Supreme Court were to find the map drawn by the Republicans in Wisconsin to be unconstitutional, the stage would be set to reverse partisan gerrymandering, and surprisingly it might revive efforts to strike down racial gerrymandering, too.”
  • In an op-ed for The Hill, James Gottry weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[b]ecause [the baker]’s wedding cakes are custom works of art, the state of Colorado cannot force him to design those cakes to celebrate ideas about marriage that conflict with his faith.”

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Friday round-up

Friday round-upOn Wednesday the justices heard oral argument in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to Clean Water Act rules. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter has […]

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Friday round-up

On Wednesday the justices heard oral argument in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to Clean Water Act rules. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter has this blog’s argument analysis. John Siciliano covers the argument for the Washington Examiner.

At The Economist’s Democracy in America blog, Steven Mazie discusses the court’s dismissal as moot last week of one of two challenges to President Donald Trump’s March 6 travel ban, noting that “[a]s one set of battles over Mr Trump’s appetite for banning Muslim people from America’s shores fizzles out, another is set to begin.” At The Atlantic, Garrett Epps suggests that even though the administration’s “third travel-ban order may very likely be upheld” in the Supreme Court, the first two bans “and the government’s inept efforts to defend [them] have permanently damaged this administration’s legal credibility.”

Briefly:

  • The Heritage Foundation’s SCOTUS 101 podcast features a discussion of “recent oral arguments, the latest action in the travel ban case, and women in the Court.”
  • At his eponymous blog, John Q. Barrett remarks that President Ronald Reagan’s criticism of partisan gerrymandering may bear on Gill v. Whitford, in which the court will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander.
  • The Corporate Crime Reporter notes that even though consumer advocate Ralph Nader testified against the nomination of Justice Stephen Breyer to the Supreme Court, Breyer “[a]pparently… does not hold a grudge,” recently stopping in at the Nader-inspired American Museum of Tort Law for a one-hour tour.
  • In an op-ed for The Daily Caller, Kevin Daley observes that “Justices Ruth Bader Ginsburg and Neil Gorsuch are trading barbs, rather frequently, in the first sitting of the Supreme Court’s new term,” noting that “Gorsuch has frequently questioned the received wisdom of his Court, prompting from Ginsburg a flash of pique.”

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Thursday round-up

Thursday round-upYesterday the justices heard oral argument in two cases. The first was in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to future Clean Water Act rules. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents […]

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Thursday round-up

Yesterday the justices heard oral argument in two cases. The first was in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to future Clean Water Act rules. [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 E&E News, Amanda Reilly reports that “[t]he case is far from a slam-dunk for either side, but justices seemed more inclined to side with the industry group.”

Yesterday’s second argument was in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Additional coverage comes from Adam Liptak for The New York Times, Lawrence Hurley at Reuters, Robert Barnes for The Washington Post, Richard Wolf for USA Today, Tony Mauro at The National Law Journal (subscription or registration required), and Kevin Daley at The Daily Caller, who reports that the “Supreme Court appeared divided Wednesday as to whether a corporation could be sued in an American court for human rights violations, though signs of a compromise emerged during the argument.” Commentary on Jesner comes from the editorial board of The Wall Street Journal and from Thomas Pickering in an op-ed for The Hill, who argues that opening the door to corporate liability under the ATS “would leave relations with every country in the world a potential hostage to U.S.-based lawsuits.” At the Human Rights At Home Blog, Jena Martin suggests that the court may “further limit the use of the ATS” by “order[ing] re-arguments in the case, asking the parties to once again address the issue of extraterritoriality.” Stephen Vladeck and Julian Ku discuss the case in a Bloomberg Law podcast.

In The Wall Street Journal, Jess Bravin reports that “[d]ozens of businesses asked the Supreme Court on Wednesday to find that federal law bars discrimination based on sexual orientation,” “asking the court to hear the appeal of a lesbian who alleges discrimination at the Savannah, Ga., hospital where she worked as a security officer” and “putting companies including Apple Inc., Cigna Corp., Morgan Stanley and Viacom Inc.  at odds with the Trump administration.” Additional coverage of the amicus brief in Evans v. Georgia Regional Hospital comes from Daniel Wiessner at Reuters, who reports that “[t]he companies said the lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in the 27 states that have not adopted their own such laws.”

At The Hill, Jacqueline Thomsen reports that “[a] top sociology group fired back at Supreme Court Justice John Roberts for referring to sociology as “’gobbledygook’” during the oral argument last week in partisan-gerrymandering case Gill v. Whitford. Ruthann Robson also takes note of the sociologists’ response at the Constitutional Law Prof Blog. At Vox, Matthew Yglesias suggests that proportional representation may offer a solution to gerrymandering, arguing that “[n]ot only does a proportionality mandate solve the problems of redistricting more elegantly, it solves the problem of judicial meddling with electoral mechanics much better” than “[m]athematical tools like the ‘efficiency gap.’”

Briefly:

  • At Bloomberg BNA, Jordan Rubin looks at four amicus briefs filed in support of the government in Carpenter v. United States, which asks whether the government must obtain a warrant before acquiring cell-site-location information from wireless carriers, that “question the factual and legal assumptions of the pro-Carpenter briefs.”
  • At National Review, Ilya Shapiro and Frank Garrison focus on two cases pending before the court that “revolve around one fundamental question: whether state legislatures can force workers into unwanted relationships with unions.”
  • At Supreme Court Brief (subscription required), Tony Mauro observes that “[r]ecent reports that new U.S. Supreme Court Justice Neil Gorsuch is ruffling the feathers of his colleagues, if true, would make him just the latest in a long line of novice justices who have had a rough landing at the nation’s highest court,” but notes that “if tradition holds, Gorsuch will evolve over time, retaining his individual style but perhaps with smoother edges.”
  • In an op-ed for The New York Times, Linda Greenhouse argues that the Trump administration’s recent rule allowing businesses to claim exemptions from the federal contraception mandate on religious or moral grounds “has played the Supreme Court justices for chumps.”

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 evening the Supreme Court vacated the ruling of the U.S. Court of Appeals for the 4th Circuit in Trump v. International Refugee Assistance Project, sending the case back to the lower court with instructions to dismiss it as moot. Justice Sonia Sotomayor would have dismissed the case as improvidently granted, leaving the ruling of […]

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Wednesday round-up

Yesterday evening the Supreme Court vacated the ruling of the U.S. Court of Appeals for the 4th Circuit in Trump v. International Refugee Assistance Project, sending the case back to the lower court with instructions to dismiss it as moot. Justice Sonia Sotomayor would have dismissed the case as improvidently granted, leaving the ruling of the lower court in place. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Adam Liptak for The New York Times, Stephen Dinan for The Washington Times, Richard Wolf and Gregory Korte for USA Today,Robert Barnes for The Washington Post, and Lyle Denniston at his eponymous blog, who reports that a “separate case, from Hawaii, remains on the court’s docket, but the Administration has asked that it, too, be dismissed because the refugee restrictions – imposed for 120 days — are to expire on October 24.” Commentary comes from Kent Scheidegger at Crime and Consequences and Ilya Somin for The Washington Post’s Volokh Conspiracy blog, who remarks that “the legal battle over Trump’s  travel ban is far from over.”

Today the justices will hear oral argument in two cases. The first is National Association of Manufacturers v. Department of Defense, which will determine the venue for future Clean Water Act disputes. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter had this blog’s preview. Amanda Wong and Jared Ham preview the case for Cornell Law School’s Legal Information Institute; another preview comes from The George Washington Law Review’s On the Docket platform. Subscript has a graphic explainer for the case.

Today’s second argument is in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute. Amy Howe had this blog’s preview. Robin Grieff and Hillary Rich previewed the case for Cornell; On the Docket also offers a preview, and Subscript provides a graphic explainer.

Yesterday the justices heard oral argument in Hamer v. Neighborhood Housing Services of Chicago, in which they will decide whether appellate time limits are jurisdictional. Howard Wasserman has this blog’s argument analysis. Jimmy Hoover looks at all three cases on this week’s argument docket for Law 360.

The court also issued orders from its October 6 conference yesterday, requesting the views of the solicitor general in Apple, Inc. v. Pepper, which asks who qualifies as a “direct purchaser” and can file a private suit for damages under federal antitrust laws. Amy Howe has this blog’s coverage of yesterday’s orders, which first appeared at Howe on the Court. At the Washington Legal Foundation’s Legal Pulse blog, Glenn Lammi argues that, in the words of the WLF’s amicus brief, “[a]n expansion of Sherman Act standing to indirect purchasers would …’deter aggressive competition of the very sort that the antitrust laws are intended to encourage.’” At Fox News, Bill Mears reports that the court declined yesterday to review “the appeal of Usama bin Laden’s one-time assistant and propagandist, leaving intact his conspiracy conviction before a military tribunal.”

Briefly:

  • At the Election Law Blog, Christopher Elmendorf and Eric McGhee respond to Justice Neil Gorsuch’s complaint at last week’s oral argument in Gill v. Whitford “that the plaintiffs’ proposed test for unconstitutional gerrymanders was too much like a steak rub,” arguing that “[a]lthough Gorsuch might make an excellent steak rub, we don’t think his metaphor carries well to the evidence or proposed standards in this case.”
  • For the Associated Press, Emily Wagster Pettus reports that “[a]dvocates of same-sex marriage are asking the U.S. Supreme Court to strike down a new Mississippi law that lets government workers and business people cite their own religious objections to refuse services to LGBT people.”
  • At his eponymous blog, Ross Runkel looks at the cert petition in Evans v. Georgia Regional Hospital, which asks whether Title VII’s prohibition against discrimination based on sex extends to discrimination based on sexual orientation, noting that “[w]ith splits of authority, and with the obvious importance of the issue involved, this seems like an ideal case for the Supreme Court to decide.”
  • At Slate, Daniel Horwitz weighs in on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether public-sector unions may require non-members to help pay for collective bargaining, arguing that if the court rules against the union in this case, “unions should immediately challenge their obligation to represent free-riding nonmembers as a violation of their ownrights under the First Amendment[, … [a]nd they should win.”
  • At CNN, Joan Biskupic reports that Gorsuch “has shaken relations at the high court with actions that show — depending on one’s view — a degree of arrogance or independence,” and wonders “whether the new justice, who has staked out the far right of the bench, will push other conservatives to the left.”
  • At Empirical SCOTUS, Adam Feldman identifies the attorneys who argued most frequently, and had the highest success rates, in “all single vote margin decisions during the Roberts Court or since the beginning of the 2005 term.”
  • At the Human Rights At Home Blog, Justine Dunlap looks at Pavan v. Smith, in which the justices summarily ordered Arkansas to provide names of same-sex partners on birth certificates, calling the case “important for what it tells us about what the Court meant in Obergefell.”
  • At The Narrowest Grounds, Asher Steinberg unpacks Justice Neil Gorsuch’s dissent last term inPerry v. Merit Systems Protection Board, about the proper forum for “mixed” civil-service and employment-discrimination claims, noting that “[a]fter reading the dissent a half-dozen times, I still don’t know why he even thinks the statute ambiguous, much less why he thinks it means what it means.”

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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Tuesday round-up

Tuesday round-upWith the entry-ban cases off the calendar, today the justices will hear only one oral argument, in Hamer v. Neighborhood Housing Services of Chicago, in which they will consider whether appellate time limits are jurisdictional. Howard Wasserman previewed the case for this blog. Ryan Powers and Larry Blocho preview the case for Cornell Law School’s […]

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Tuesday round-up

With the entry-ban cases off the calendar, today the justices will hear only one oral argument, in Hamer v. Neighborhood Housing Services of Chicago, in which they will consider whether appellate time limits are jurisdictional. Howard Wasserman previewed the case for this blog. Ryan Powers and Larry Blocho preview the case for Cornell Law School’s Legal Information Institute, and another preview comes from the George Washington Law Review. Subscript offers a graphic explainer for the case.

In an op-ed for The Washington Post, Eric McGhee, the co-creator of an analytical measure of partisan advantage in redistricting relied on by the challengers in Gill v. Whitford, in which the Supreme Court will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander, “correct[s] a couple misconceptions” arising out of last Tuesday’s oral argument. Additional commentary on the argument comes from Kenneth Jost at Jost on Justice, arguing that “[j]udges cannot shirk hard issues because they are hard.”

At ImmigrationProf Blog, Nancy Morawetz suggests that the oral argument in one of last week’s immigration cases, Sessions v. Dimaya, “in which the Court saw just how complicated immigration law is and how protracted proceedings can be for a person who raises serious challenges to deportation,” should have helped clarify the issues in the other, Jennings v. Rodriguez, a challenge to the prolonged detention of noncitizens without bond hearings. Another look at the argument in Dimaya comes from Ziran Zhang at Burnham & Gorokhov’s eponymous blog.

At The World and Everything in It, Mary Reichard discusses the oral arguments in Whitford and Epic Systems v. Lewis, in which the court will decide whether labor laws forbid class waivers in employment contracts. A Daily Journal podcast unpacks several of last week’s oral arguments, focusing on Whitford and Rodriguez. In an op-ed in The Hill, David Noll weighs in on one of the companion cases to Epic Systems, maintaining that “the type of agency regulation in Murphy Oil is crucial to ensuring that arbitration does not undermine federal statutes that are enforced through private litigation.”

At The Daily Caller, Kevin Daley reports that tomorrow’s argument in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute, “will have wide-ranging implications for counter-terrorism efforts and international human rights law.” In an op-ed in The Washington Times, Norman Lamont weighs in on the case, arguing that “[a]ttacking an ally by letting the U.S. courts be used to extract hundreds of millions of dollars from its principal financial institution would be a foreign policy blunder of the first order.”

In The Washington Post, Robert Barnes reports on McCoy v. Louisiana, a case the court recently agreed to review that asks whether “it violate[s] the Constitution for a defense counsel to concede a client’s guilt over the accused’s express objection.” Another look at the case comes from Adam Liptak in The New York Times, who observes that “[c]onceding guilt in a capital case,” which has both a guilt phase and a punishment phase, “is sometimes the right play.”

Briefly:

  • At the Florida Court Review, John Cavaliere looks at the cert petition in Truehill v. Florida, a challenge to Florida’s death-sentencing procedures that the justices considered at their conference last Friday.
  • At Capital Journal, David Ganje discusses the cert petition in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians, in which “California state water agencies … are asking the Supreme Court to overturn a Circuit Court decision … [that] granted an Indian tribe water rights to groundwater underneath its reservation.”
  • At his eponymous blog, Ross Runkel looks at a cert petition that asks whether “independent contractor” truck-drivers are covered by the Federal Arbitration Act.
  • At the UC Davis Law Review Online, Chad Flanders assesses the cert petition in Hidalgo v. Arizona, a challenge to Arizona’s death-penalty scheme, contending that “[w]hile the argument in the Hidalgo petition is superficially appealing, it involves a basic mistake.”
  • At E&E News, Amanda Reilly previews National Association of Manufacturers v. Department of Defense, which will be argued tomorrow and which “will determine the venue for future Clean Water Act disputes,” noting that the case “could have big consequences for the Trump administration as it attempts to repeal and replace the Obama-era Clean Water Rule.”
  • At The Atlantic, Garrett Epps weighs in on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether public-sector unions may require non-members to help pay for collective bargaining, describing the case as “a constitutional dispute conjured more or less out of thin air over the past five years by Justice Samuel Alito.”
  • At The George Washington Law Review, W. Burlette Carter revisits Gloucester County School Board v. G.G., the challenge by a transgender student to his high school’s refusal to allow him to use the boys bathroom that the Supreme Court remanded last term after the Trump administration revoked an Obama-era Department of Education guideline, predicting that “[w]hatever the outcome below in Grimm, the chances are excellent that the Supreme Court be asked to tell us the meaning of sex in the next term.”
  • At The National Law Journal, Marcia Coyle reports on a recent panel discussion in which several former female assistants to the solicitor general shared stories of how attitudes towards women in the SG’s office have “‘evolved,'” “how mentors have helped guide their careers and the impact of having female justices.”

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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Friday round-up

Friday round-upYesterday the parties in Trump v. Hawaii and Trump v. International Refugee Assistance Project filed letter briefs addressing the question of whether the Trump administration’s recent proclamation replacing the president’s March 6 entry ban with new restrictions renders the cases moot. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. […]

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Friday round-up

Yesterday the parties in Trump v. Hawaii and Trump v. International Refugee Assistance Project filed letter briefs addressing the question of whether the Trump administration’s recent proclamation replacing the president’s March 6 entry ban with new restrictions renders the cases moot. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Richard Wolf for USA Today, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, and Robert Barnes for The Washington Post, who reports that “[t]he Trump administration told the Supreme Court … that there is no reason for the court to rule on the legality of the president’s previous bans on travel from certain countries, and that lower court rulings against the president’s position should be erased.” At Just Security, Marty Lederman explains that he “would not be at all surprised if the Court does ‘vacate” the opinions,” but doesn’t “think anything of much practical significance turns on whether it does so or not.”

The final oral argument of the week was on Wednesday in Class v. United States, which asks whether a guilty plea waives a challenge to the constitutionality of an offense. Rory Little analyzes the argument for this blog. At Law 360 (subscription required), Jimmy Hoover reports that “[t]he tenor of the justices’ questions suggest[s] hope for the case of retired veteran Rodney Class, who is seeking to vacate his conviction for bringing firearms on U.S. Capitol grounds in 2013.”

At RealClear Politics, Matt Walter weighs in on Gill v. Whitford, in which the court will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander, arguing that “holding a legislature’s redistricting plan unconstitutional because a political party is unhappy with its election results would politicize the judiciary to its detriment.” At FiveThirtyEight, Oliver Roeder and Galen Druke speculate that Justice Anthony Kennedy’s silence during the challengers’ argument on Tuesday in Whitford suggests that “things don’t look good for extreme partisan gerrymandering.” Additional commentary on Whitford comes from Mark Joseph Stern at Slate.

At Bloomberg BNA, Jordan Rubin reports that “Justice Neil M. Gorsuch revealed two sides of himself during oral arguments in contentious ‘crimmigration’ cases—at the intersection of immigration and criminal law—during the first two days of the U.S. Supreme Court’s 2017 term.” At the ImmigrationProf Blog, Denise Gilman looks at one of the cases, Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings, arguing that “illusory possibilities for release on parole cannot substitute for independent review of detention decisions.”

Briefly:

  • At the Library of Law and Liberty, Mark Pulliam reviews “Scalia Speaks,” a new compilation of “dozens of Scalia’s best speeches (out of hundreds that he delivered), on a variety of subjects, to both legal and lay audiences.”
  • Rewire’s Boom! Lawyered podcast features a discussion of how “legal precedents defining your speech rights are being debated and established all the way up to the U.S. Supreme Court.”
  • At the ACS Blog, Ruben Garcia assesses Monday’s argument in Epic Systems v. Lewis, in which the court will decide whether labor laws forbid class waivers in employment contracts.
  • At Empirical SCOTUS, Adam Feldman identifies “[s]everal possible facets of the justices’ new oral argument strategies [that] became apparent during the first week of oral arguments for the 2017 Supreme Court term.”

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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Thursday round-up

Thursday round-upThe justices heard two oral arguments yesterday. The first was in probable-cause and qualified-immunity case District of Columbia v. Wesby. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Subscript offers a graphic explainer for the case. Coverage of the argument in Wesby comes from Richard Wolf at USA […]

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Thursday round-up

The justices heard two oral arguments yesterday. The first was in probable-cause and qualified-immunity case District of Columbia v. Wesby. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Subscript offers a graphic explainer for the case. Coverage of the argument in Wesby comes from Richard Wolf at USA Today, who reports that “after spending the first two days of their 2017 term tackling potential landmark cases on partisan gerrymandering and workers’ rights, perhaps the justices were ready to dig into a set of facts that included booze, drugs, strippers and a hostess named ‘Peaches,’” Lawrence Hurley at Reuters, and Jessica Gresko at the Associated Press. In The Washington Post, Ann Marimow uncovers the identity of the elusive hostess, “Peaches.”

Yesterday’s second argument was in Class v. United States, which asks whether a guilty plea waives a challenge to the constitutionality of an offense. In The Wall Street Journal, Jess Bravin reports that “Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues … in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain,” suggesting that “like [that of] his late predecessor, Justice Antonin Scalia, … Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.”

Yesterday, over the votes of three justices, the court also vacated a lower-court injunction that had put on hold the execution of an Alabama inmate. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Commentary comes from Kent Scheidegger at Crime and Consequences.

On Tuesday, the justices heard oral argument in Gill v. Whitford, in which they will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. At Take Care, David Gans suggests that, based on the tenor of the argument, “it seems that the Justices inclined to uphold partisan gerrymandering will face an uphill battle to convince Justice Kennedy that Wisconsin’s extreme partisan gerrymander can be squared with the First Amendment principles Kennedy holds dear.” Additional commentary on the argument in Whitford comes from Kent Scheidegger at Crime and Consequences, Cullen Seltzer at Sands Anderson’s eponymous blog, Asher Steinberg at The Narrowest Grounds, and Nicholas Stephanopolous, one of the attorneys for the plaintiffs, whose research forms a basis for the asymmetry metric they propose, at Slate. At the Election Law Blog, Rick Hasen speculates about whether the plaintiffs will ask the Supreme Court to lift its stay of the lower court’s order requiring the Wisconsin legislature to draw new districts by November, asking “why … Wisconsin voters [should] endure another election with an unconstitutional map, if we know where this thing is going to end up?”

Tuesday’s second argument was in Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings, which the justices scheduled for reargument at the end of October Term 2016. Kevin Johnson has this blog’s argument analysis. KQUED Radio (audio) features a discussion of the case; KPCC Radio (audio) offers a look at Jennings and at Monday’s reargued immigration case, Sessions v. Dimaya.

Commentary on Jesner v. Arab Bank, a case the justices will hear next week that asks whether corporations are liable under the Alien Tort Statute, comes from John Sherman in The Clarion, who argues that “legal liability for corporations does not impose an undue burden on responsible businesses, which already have a strong interest in managing their human rights risks.” At the ACS Blog, John Eubanks also weighs in on Jesner, asserting that “the statutory text and common law’s interpretation of tort liability” militate in favor of corporate liability to the victims of “violations of the law of nations such as terrorism, crimes against humanity, or even genocide.”

Briefly:

  • At Bloomberg BNA’s Cases and Controversies podcast, the editor of “Scalia Speaks,” a “new compilation of Justice Antonin Scalia’s speeches,” “underscores that the justice left behind much more than his written work.”
  • In an op-ed for The New York Times, Stephen Vladeck urges the justices to review Bahlul v. United States, a constitutional challenge to the post-9/11 military commissions, in order to help “settl[e] the structural legitimacy of the Guantanamo tribunals.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that in a recent letter to several members of Congress who had requested live audio access to this week’s partisan-gerrymandering argument, the “Supreme Court appears to have to shut the door on livestreaming audio or video of its oral arguments for the foreseeable future.”
  • At Pacific Standard, Tom Jacobs looks at a recent study that “analyzed the transcripts of 3,583 oral arguments presented to the court over more than three decades” and found that “’female lawyers are interrupted earlier and more often, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to male lawyers.’”

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Wednesday round-up

Wednesday round-upThe justices will hear two oral arguments today. First on the argument docket is qualified-immunity case District of Columbia v. Wesby. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Simon Bord and Katherine Thibodeau preview the case for Cornell Law School’s Legal Information Institute. In The Washington Post, Ann […]

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Wednesday round-up

The justices will hear two oral arguments today. First on the argument docket is qualified-immunity case District of Columbia v. Wesby. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Simon Bord and Katherine Thibodeau preview the case for Cornell Law School’s Legal Information Institute. In The Washington Post, Ann Marimow reports that the case, which stems from a lawsuit seeking damages from the police for arrests on trespassing charges that were later dropped, calls for “[o]ne of the most buttoned-up institutions in the country” to “wrestle with the free-for-all culture of the house party” held by “a mystery hostess named Peaches.”

Today’s second argument is in Class v. United States, which asks whether a guilty plea waives a challenge to the constitutionality of an offense. Rory Little previewed the case for this blog. Another preview comes from Rick Titcomb and Vadim Belinskiy at Cornell.

Yesterday the court heard oral argument in two cases. The first was Gill v. Whitford, in which the justices will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Also at this blog, Mark Walsh offers a “view” of the argument from the courtroom.

Additional coverage of the argument in Whitford comes from Richard Wolf at USA Today, Nina Totenberg at NPR, Lyle Denniston at his eponymous blog, Jess Bravin and Brent Kendall at The Wall Street Journal, Kevin Daley at The Daily Caller, Tony Mauro at Law.com (subscription or registration required), Steven Mazie at the Economist, Greg Stohr at Bloomberg, Adam Liptak and Michael Shear in The New York Times, Robert Barnes in The Washington Post, Ariane de Vogue at CNN, Patrick Marley for the Milwaukee Journal Sentinal (via USA Today), and David Savage for the Los Angeles Times, who reports that “a majority on Tuesday seemed to lean in favor of a potential landmark ruling that for the first time would limit politicians from entrenching their party in power by clever drawing of legislative or congressional district lines.”

Commentary on the argument comes from Rick Hasen at the Election Law Blog, Lisa Soronen at the National Conference of State Legislatures blog, Jessica Mason Pieklo at Rewire, Michael Bobelian at Forbes, Derek Muller at Excess of Democracy, Ruthann Robson at the Constitutional LawProfBlog, Ryan Lockman at Lock Law Blog, Edward Foley at Election Law @ Moritz, and Michael Parsons at Modern Democracy, who observes that “oral argument revealed … litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.”

Yesterday’s second argument was in Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings, which the justices scheduled for reargument at the end of October Term 2016. Subscript provides a graphic explainer for the case. At Reuters, Lawrence Hurley reports that a “majority of the justices appeared sympathetic to the idea that immigrants held long-term should be eligible for a hearing that would let them argue for their release[,] [b]ut the court’s conservatives seemed skeptical over whether such a hearing should be triggered automatically after six months, as a lower court had ruled.” At the ACLU Blog, Mark Hwang recounts the story of how he “received a bond hearing as result of the [lower] court decision in Jennings.”

On Monday, the justices heard argument in Sessions v. Dimaya, which asks whether a criminal-removal provision of the immigration laws is unconstitutionally vague. Kevin Johnson analyzes the argument for this blog.

At The Economist, Steven Mazie reports on Monday’s oral argument in Epic Systems v. Lewis, in which the court will decide whether labor laws forbid class waivers in employment contracts, observing that “[i]t appears that the ruling will turn on the vote of Neil Gorsuch, the oddly silent ninth justice whose votes as a circuit judge indicate his views match those of the president who tapped him for his seat.” At the eponymous blog of law firm Ogletree Deakins, Ron Chapman and Christopher Murray conclude that “[a]t this point, the only thing that is certain is that the Court is divided.” More discussion of the argument comes from Andrew Pincus at Mayer Brown’s Class Defense Blog and R. Scott Oswald at The Employment Law Group (reprinted from Law360), who suggests that “[e]ven for the conservative justices, it seemed, a complete shutdown of all concerted legal action, in all forums, would be too much.” At Bloomberg, Greg Stohr reports that “[i]n an unusual letter to the U.S. Supreme Court, the National Labor Relations Board’s general counsel said he gave a series of inaccurate answers” during the argument that “seemed to undercut his argument that workers must be allowed to press group claims even if they signed agreements to take disputes individually to arbitration.”

Commentary on the new Supreme Court term comes from Elizabeth Wydra in an op-ed for the Sun-Sentinel, David Gans at Balkinization, and Bill Blum at Truthdig, who observes that “[a]fter moving to the political center the past three terms, the Supreme Court is poised to take a turn back to the right in its new session,” and that the “big question is how abrupt and sharp the turn will be.”

Briefly:

  • At The Federalist, Margot Cleveland laments the Supreme Court’s refusal to review a case that asked “whether surrogate mothers and babies born to them have constitutional rights that trump state surrogacy laws” and that “screamed of the scandal underlying the surrogacy industry.”
  • At E&E News, Amanda Reilly reports that the Supreme Court on Monday “asked for the Trump administration’s views on Virginia’s moratorium on uranium mining, a sign that justices are interested in a mining company’s plea to overturn the ban,” but “otherwise declined to add several other environmental and energy petitions, including two fisheries cases, to its docket.”
  • At Law360 (subscription required), Jacqueline Bell and Christina Violante look at what may be the waning influence of the solicitor general’s office, noting that although “the solicitor general remains the most influential lawyer at the court, a growing group of specialty Supreme Court attorneys in private practice — many of whom have worked in the solicitor general’s office themselves — are testing the limits of that power and giving the office a run for its money.”

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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Tuesday round-up

Tuesday round-upThis morning the court hears oral argument in two cases. The first is Gill v. Whitford, in which the justices will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. Amy Howe had this blog’s preview. Leonardo Mangat and Douglas Wagner preview the case for Cornell Law School’s Legal Information Institute. […]

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Tuesday round-up

This morning the court hears oral argument in two cases. The first is Gill v. Whitford, in which the justices will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. Amy Howe had this blog’s preview. Leonardo Mangat and Douglas Wagner preview the case for Cornell Law School’s Legal Information Institute. Coverage of Whitford comes from Nina Totenberg at NPR and Michael Wines in The New York Times, who reports that a “decisive ruling striking down the Wisconsin Assembly map could invalidate redistricting maps in up to 20 other states,” and from Steven Mazie at The Economist’s Espresso blog. Today’s episode of More Perfect (podcast) features a discussion of Whitford.

In an op-ed for The Washington Post, Cliff Sloan and Michael Waldman maintain that “[f]or those defending partisan gerrymanders, contrary to their sweeping claims, history is not on their side.” In an op-ed at The Hill, Rep. Rod Blum, R-Iowa, points out that “[t]oday’s powerful technology and voter information allows lawmakers to rig and game the system in ways that never before could have been imagined.” Jowei Chen, in an op-ed for Time, explains that his academic research reveals that “the legislature clearly skewed the Wisconsin map to benefit the Republican Party, and the map they came up with is extremely skewed.”

Today’s second argument is in Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings, which the justices scheduled for reargument at the end of October Term 2016. Kevin Johnson had this blog’s preview. Another preview comes from Shelby Garland and Jonathan Kim at Cornell. At Take Care, Leah Litman and Britany Riley argue that “[t]he administration’s position on the ‘solution’ to lengthy immigration detentions—go home— … illustrates how the structure of immigration law allows an aggressive executive branch to render meaningless the few protections that immigration law affords.”

The justices kicked off October Term 2017 yesterday by hearing oral argument in Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA, in which the court will decide whether labor laws forbid class waivers in employment contracts. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Additional coverage of the argument in Epic Systems comes from Greg Stohr at Bloomberg, who reports that the “argument … suggested the justices are divided over the power of employers to block class-action lawsuits by workers and channel disputes into arbitration,” Kevin Daley at The Daily Caller, David Savage in the Los Angeles Times, Nina Totenberg at NPR, Adam Liptak in The New York Times, Jess Bravin in The Wall Street Journal, and Lawrence Hurley at Reuters. Ross Runkel reviews the argument at his eponymous blog. Commentary on Epic Systems comes from Joel Nolette at The Least Dangerous Blog, David Freeman Engstrom in an op-ed for The New York Times, and Arthur Bryant in an op-ed for The National Law Journal.

Yesterday’s second argument was in Sessions v. Dimaya, which asks whether a criminal-removal provision of the immigration laws is unconstitutionally vague. For USA Today,Richard Wolf reports that “the justices appeared to side with a Filipino immigrant facing deportation for violent felonies as required by immigration law, but who argued that the law was unconstitutionally vague.” At FiveThirtyEight, Amelia Thomson-DeVeaux points to signs that in immigration cases like Dimaya and Jennings, Justice Neil Gorsuch “may defy his reputation as a ‘Scalia clone.’”

Yesterday the court issued additional orders from its September 25 conference. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage of today’s orders comes from Mark Walsh at Education Week’s School Law Blog, who reports that in disposing of hundreds of cases that had piled up over the summer, the court “declined to take up cases on special education, violent speech aimed at schools, alleged teacher misconduct, and alleged retaliation against parents.” At Reuters, Lawrence Hurley reports that the justices “rejected New Zealand-based internet mogul Kim Dotcom’s challenge to the U.S. government’s bid to seize assets held by him and others involved in the now-defunct streaming website Megaupload.” Tony Mauro reports at Law.com that the court also “denied review in a disabilities rights case that could have had an impact on whether internet services and companies need to comply with the Americans with Disabilities Act.” Kent Scheidegger remarks on yesterday’s denials at Crime and Consequences.

Last week the court added nine hours of oral argument to its October Term 2017 docket. At Education Week, Mark Walsh reports on the grant in in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether public-sector unions may require non-members to help pay for collective bargaining, noting that the case has “enormous financial implications for teachers’ unions.” In an op-ed at the Daily Journal, Deborah La Fetra maintains that “Janus gives independent workers reason to hope that the Supreme Court will soon end the public employee unions’ ability to garnish their paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.” At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen notes that “the Court agreed to hear two unrelated cases involving car searches.”

Briefly:

  • More Perfect (podcast) explores Korematsu v. United States, “the case that upheld President Franklin Roosevelt’s internment of American citizens during World War II based solely on their Japanese heritage, for the sake of national security,” and asks: “What happens when the Supreme Court, the highest court in the land, seems to get it wrong?”
  • At Law.com, Tony Mauro reports that “[f]ive U.S. Supreme Court justices attended the annual Roman Catholic Red Mass in Washington on Sunday, the unofficial kick-off of the fall season of the judiciary.”
  • At NPR, Nina Totenberg considers a lesser-known legacy of the late Justice Antonin Scalia: his speeches, the most notable of which are included in a new anthology, “Scalia Speaks,” edited by Scalia’s son Christopher Scalia and conservative commentator Edward Whelan.
  • At the Kroc Peace Magazine, Richard Custin argues that by ruling in Jesner v. Arab Bank PLC that corporations can be held liable under the Alien Tort Act, the Supreme Court can “hold financial institutions accountable for failing to detect unethical financial transactions.”
  • At Education Week, Mark Walsh offers “an educator’s guide” to the new Supreme Court term.
  • At Supreme Court Brief (subscription required), Tony Mauro observes that the October argument calendar has “shuffled the plans of more advocates than any other time in recent memory.”

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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Monday round-up

Monday round-upToday, the first day of October Term 2017, the justices will hear two oral arguments. First on the docket is a trio of consolidated cases, Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA, in which the court will decide whether labor laws forbid class waivers in employment […]

The post Monday round-up appeared first on SCOTUSblog.

Monday round-up

Today, the first day of October Term 2017, the justices will hear two oral arguments. First on the docket is a trio of consolidated cases, Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA, in which the court will decide whether labor laws forbid class waivers in employment contracts. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Axel Schamis and Katie Van Bramer preview the case for Cornell Law School’s Legal Information Institute. Additional coverage of Epic Systems comes from Lawrence Hurley and Robert Iafolla at Reuters, who report that “[i]n an unusual twist, the administration will face off against an independent agency of the federal government, the National Labor Relations Board,” and from David Savage for the Los Angeles Times. The second argument today is in Sessions v. Dimaya, which the justices scheduled for reargument at the end of October Term 2016, and which asks whether a criminal-removal provision of the immigration laws is unconstitutionally vague. Kevin Johnson previewed the case for this blog. Kara Goad and Elizabeth Sullivan preview the case for Cornell. George Washington Law Review’s On the Docket blog offers a preview of all the cases the justices will hear this week.

Anyone looking for one last preview before the term begins has a wide array of options. They include offerings from Robert Barnes in The Washington Post, Adam Liptak in The New York Times, WBUR’s On Point (audio), Lawrence Hurley at Reuters, Nina Totenberg at NPR, Ariane de Vogue at CNN, Scott Bomboy at Constitution Daily, and Jess Bravin in The Wall Street Journal, who reports that the term begins “with a conservative majority and a docket filled with longtime conservative goals to go with it.” At Fox News, Bill Mears reports that “the prospect of a resignation or two adds an extra layer of drama and unpredictability surrounding the session that kicks off” today. Commentary on the new term comes from Jessica Mason Pieklo in Rewire.

At Yahoo News, Roger Parloff reports that the court’s decision whether to “wade into the inherently political quagmire of district mapping” in Gill v. Whitford “will likely hinge on whether, in its view, advances in technology have changed the landscape since it declined to do so in” another partisan-gerrymandering case 13 years ago. At Election Law @ Moritz, Edward Foley explains why Whitford “looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.” At The Atlantic, Garrett Epps finds echoes of past justices in the case, arguing that the modern democracy shaped by the court’s 1962 decision in Baker v. Carr “is now threatened by the creativity of partisan hackery,” and that Whitford “will show us whether the Roberts Court has the intelligence to find a remedy, and the courage to apply it.” In an op-ed for The Hill, Carolyn Shapiro warns that “[i]n the absence of constitutional and judicially-enforceable limitations on partisan gerrymandering, it is well within the realm of possibility that constitutional amendments, or even an entirely new constitution, could be enacted despite a lack of popular support.”

For the Deseret News, Kelsey Dallas highlights the amicus briefs filed in support of the baker who declined to create a wedding cake for a same-sex wedding in Masterpiece Cakeshop v. Colorado Civil Rights Commission, noting that “several of the briefs argue that the Supreme Court has already showed its hand on the issue at stake, when it referenced respect for religious diversity in its 2015 same-sex marriage ruling.” At Take Care, Jim Oleske argues that the court should “bring its free exercise doctrine into parity with its free speech doctrine” by “providing a floor of modest protection against incidental burdens without requiring religious exemptions that – like the one sought in Masterpiece – would interfere with substantial state interests, such as ensuring equality of treatment in the marketplace.”

Briefly:

  • For this blog, Andrew Hamm covers the Red Mass in Washington, “a Roman Catholic liturgy held annually the Sunday before the Supreme Court’s new term to invoke God’s blessing on those responsible for the administration of justice,” which five justices and the solicitor general attended yesterday.
  • The Heritage Foundation’s SCOTUS 101 podcast features a discussion of the latest grants and “the fate of the travel ban.”
  • At Jost on Justice, Kenneth Jost argues that Justice Neil “Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.”
  • At Empirical SCOTUS, Adam Feldman cites the experience of the oral advocates and amici in the cases on the October argument docket as evidence that “the justices are taking on a set of potentially more contentious cases with far reaching political implications” after having considered a “non-divisive set of cases during the 2016 term.”

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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