On February 22 at 12 p.m., the Cato Institute will host a panel discussion on Minnesota Voters Alliance v. Mansky, a First Amendment case that will be argued before the Supreme Court on February 28. Panelists include Wen Fa, Ginger Anders and Trevor Burrus; Ilya Shapiro will moderate. Registration and additional information about this event, which will be held at Cato Institute’s Hayek Auditorium, is available on the Cato website.

 
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The Supreme Court’s long break is over and we’re here to preview some of the most interesting cases from the February sitting. We take a deep dive into Janus v. AFSCMELozman v. City of Riviera BeachCurrier v. Virginia and Ohio v. American Express, making our trademark predictions as to each case. We also speculate about who Justice Ruth Bader Ginsburg threw some recent shade at, and we wrap things up with some hotline calls.

This week at the court

By on Feb 18, 2018 at 12:00 pm

We expect orders from the February 16 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m. The court will hear oral argument on Tuesday in Currier v. Virginia and City of Hays v. Vogt and on Wednesday in Rosales-Mireles v. United States and Dahda v. United States. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their February 23 conference; our list of “petitions to watch” for that conference will be available soon.

 
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Petition of the day

By on Feb 16, 2018 at 5:30 pm

The petition of the day is:

17-1060
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether, under the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), later actions may proceed without refiling once all earlier action have been dismissed, or whether later actions must be dismissed and refiled; and (2) whether the first-to-file bar of the FCA is jurisdictional, and, if so, whether the bar applies only at the time of filing, or whether it may be lifted by amendment, supplement, or later events.

In an op-ed Thursday in the Los Angeles Times, law professor Rick Hasen suggested that “there is something disconcerting about Supreme Court justices becoming political rock stars.” He cautioned against turning the justices into gods and devils. Hasen isn’t the only commentator addressing the hagiography of the justices. Speaking on Monday at the University of Pennsylvania Law School as part of a panel that included Justice Ruth Bader Ginsburg, Slate’s Dahlia Lithwick encouraged members of the media to reconsider recent portrayals of Ginsburg. She suggested that depictions of her as cultural icon and judicial celebrity reduce the complexity of her personality and contributions to the law.

Yesterday at the Law Library of Congress, Justice Clarence Thomas weighed in, echoing Hasen’s and Lithwick’s thoughts. Thomas said he regretted the “myth-making around the court and who we are” as justices and people, which has created a contrast between the “real world” of the Supreme Court and how it is portrayed outside the court. Judges and justices “don’t have the time, energy, or ink to engage in the narrative battles” ascribed to them by some in the media, Thomas said.

Journalists might write that a justice decided a case “callously” – especially a death penalty case – but “those are people who’ve never stayed up in the middle of the night voting on it,” Thomas continued.

Several times in his remarks with Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces, Thomas spoke about Justice Antonin Scalia. He said that Scalia and he “trusted each other so much” because “getting it right was important to both of us.”

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On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.

Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.

 
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Friday round-up

By on Feb 16, 2018 at 5:30 am

Briefly:

  • For the New Republic, Matt Ford suggests that by agreeing to review Gonzalez-Badillo v. United States, in which the petitioner argues that under the Fourth Amendment, “[h]is general acquiescence to a search of his bag … did not extend to the destruction of his personal property,” the court could “bring greater clarity to one’s constitutional rights during a consensual search.”
  • Constitution Daily reports that yesterday was the anniversary of the signing in 1879 of “a new law that would admit women as members of the Supreme Court bar and allow them to submit and argue cases at the high court.”
  • At Reuters’ On the Case blog, Alison Frankel explains why the Trump administration’s request to hear a challenge to a district-court order blocking the administration’s attempt to unwind the Deferred Action for Childhood Arrivals program before the court of appeals has ruled on the issue may be more of a long shot after the issuance this week of “a second nationwide injunction barring rescission of the DACA program.”
  • In an op-ed at The Hill, Anne O’Connor weighs in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, arguing that the Supreme Court should “take this opportunity to ensure that government cannot compel anyone to speak a message that violates their reason for being — especially when fundamental First Amendment rights are at stake.”
  • In an op-ed for the Los Angeles Times, Richard Hasen finds “something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era,” and suggests that “[m]aybe, just maybe, the left should tone it down with the worship of Supreme Court Justice Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’”

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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Petition of the day

By on Feb 15, 2018 at 5:00 pm

The petition of the day is:

17-1084

Issue: Whether, under principles of implied pre-emption, the federal Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., forbids states from enacting legislation to prohibit human smuggling.

There are two primary biographies of Justice Abe Fortas — Bruce Allen Murphy’s 1988 “Fortas: The Rise and Ruin of a Supreme Court Justice” and Laura Kalman’s 1992 “Abe Fortas: A Biography.” Neither of these works devotes much attention to Fortas’ life in his hometown of Memphis, Tennessee.

Murphy – writing after the discovery of President Lyndon Johnson’s papers relating to Fortas, which Johnson ordered destroyed but which his staff secretly preserved – focused on Fortas’ downfall as a result of ethical scandals that surfaced during and after his nomination for chief justice. Kalman wrote a more comprehensive work, but still gave Fortas’ Memphis life only six pages before turning to his time at Yale Law School.

In a recent article in the Journal of Supreme Court History, “Memphis and the Making of Justice Fortas,” Timothy Huebner fills that void in historians’ understanding of Fortas’ early life. Through research in archives at Memphis public libraries, Temple Israel in Memphis, local newspapers, the University of Memphis and Rhodes College (where Huebner teaches and which Fortas attended when it was known as Southwestern), Huebner provides history that “none of us have gotten” before, as Kalman wrote in an email.

Huebner’s new research presents a different side to this man, who “grew up in an immigrant Jewish family of modest means in Memphis,” but who is “often portrayed as a consummate Washington insider,” as Huebner writes.

Huebner argues that experiences and relationships in Memphis “helped to shape some of Fortas’s specific attitudes about law and justice.” In particular, Huebner focuses on the Tennessee roots of Fortas’ approach to three constitutional values – justice for the poor, freedom for religious minorities and civil rights for African-Americans – that “have been obscured by the ethical scandals that ended his brief tenure on the Court.”

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Thursday round-up

By on Feb 15, 2018 at 7:20 am

The spotlight stays on the high-profile union-fees case that will be argued this month, Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At The Daily Caller, Kevin Daley reports that “[t]he U.S. Conference of Catholic Bishops filed an amicus brief at the Supreme Court supporting a pro-choice labor union in a dispute over mandatory union fees,” and that “[t]he case … places the Church’s historic support for organized labor in direct tension with its opposition to abortion.” At The Atlantic, Garrett Epps laments that the argument by two libertarian-leaning scholars in an amicus brief in the case that “the agency fees paid by objectors simply do not implicate their First Amendment rights at all” is unlikely to “slow the court’s stampede to overturn Abood,” the precedent holding the fees to be permissible. In an op-ed in The Washington Post, Charles Lane observes that “[i]f they lose, unions … should look in the mirror,” noting that “[a]utomatic dues are a mixed blessing for any union, since they relieve leaders from the responsibility to persuade rank-and-file members of the union’s value.”

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