Editor's Note :

Editor's Note :

This week we are hosting an online symposium on NIFLA v. Becerra, in which the Supreme Court will consider whether the disclosures required by California’s Reproductive FACT Act violate the free speech clause of the First Amendment. Contributions are available at this link.

Friday round-up

By on Dec 15, 2017 at 7:02 am

Briefly:

  • At Bloomberg BNA, Jordan Rubin reports that “[a] group of foreign lawyers wants the U.S. Supreme Court to look to the English roots of the Sixth Amendment and the duties of counsel in other countries today when it considers the case of an American death row inmate” in McCoy v. Louisiana, a capital case scheduled for oral argument in January.
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “break down the latest orders from SCOTUS (including a wife-swapping case and political gerrymandering in Maryland).”
  • In an op-ed for Forbes, Richard Samp looks at the aftermath of last term’s decision in Expressions Hair Design v. Schneiderman, in which the court ruled that New York’s credit-card surcharge ban regulates speech and remanded the case to the court of appeals to determine whether the ban violates the First Amendment; he argues that the appeals court’s decision to delay a ruling on the merits by certifying a question to the New York Court of Appeals “betrays a thinly disguised hostility to the First Amendment claims at issue.”
  • At the Pacific Legal Foundation blog, Ethan Blevins urges the justices to “grant Brott v. United States, a case about whether property owners are entitled to a jury when the federal government takes their land,”arguing that “[a] jury is key when it comes to compensation questions because the government has an obvious conflict of interest in appraising ‘fair’ market value.”
  • For NBC News, Alexandra Campbell Howe reports on efforts by Justice Sonia Sotomayor, who sits on the board of iCivics, an educational nonprofit founded by retired Justice Sandra Day O’Connor, to “mak[e] a game available in Spanish that teaches U.S. civics in a more approachable and engaging way.”

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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Petitions of the day

By on Dec 14, 2017 at 5:17 pm

The petitions of the day are:

17-765

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

17-766

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Priscilla J. Smith is a clinical lecturer in law at Yale Law School.

Don’t ask me why, but I’ve been moved of late to look for common ground with ideological opponents. Perhaps it is the aging process, a desire for a quieter life, or living with daily reminders of obnoxious (add whatever adjective here you’d like: offensive, illegal, disgusting, or off-color, unwise, intemperate) behavior by friends and foes alike. Recently I had the pleasure (?) of testifying at a Congressional hearing involving (mostly) men yelling at each other (and at me), that ended early because of what the chair called a “lack of decency” among committee members. Indeed.

First, let’s set the stage by getting your mind off abortion for a second. Consider an advertisement posted by Christian Scientists, without affiliation, stating “Chest Pain, Blood Loss, Broken Bones? Medical Treatment at Exit 8!” and directing patients to an office where they receive only prayers for healing. Surely the government could act to prevent harm to patients before it occurs, especially if the Christian Scientists have compounded the deception by designing the office to look like a medical facility, with employees in lab coats collecting patients’ health information, suggesting that medical treatment is available, just behind the curtain. A simple disclosure on the ad and at the clinic stating that the clinic is not a licensed medical provider and has no licensed medical personnel available to provide treatment would be very little to ask. And this would be so whether or not the Christian Scientists offered their prayers or “counseling” for free. In fact, a sign saying “Free Emergency Medical Treatment Offered Here!” only increases the power of the fraud by targeting it at low-income individuals desperate for medical care.

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Mark L. Rienzi is a professor of law at The Catholic University of America, Columbus School of Law.

The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues. When the speech in question matters most, the temptation toward government control is greatest. This is true both for the political branches the First Amendment is designed to restrain and, more dangerously, for the judges charged with its enforcement.

Thus it is no surprise that abortion-related speech cases like National Institute of Family and Life Advocates v. Becerra arrive on the Supreme Court’s docket from time to time. Too often, courts in such cases are either tempted or overwhelmed by the abortion-related aspects of a case and fail to apply straightforward First Amendment principles. That pattern is a danger to all speakers, as abortion-related First Amendment errors can distort the doctrine more broadly.

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Thursday round-up

By on Dec 14, 2017 at 7:22 am

At The Federalist, Margot Cleveland notes that although the justices denied cert this week in Evans v. Georgia Regional Hospital, which asks whether federal law prohibits employment discrimination based on sexual orientation, “[t]he Supreme Court … will need to eventually resolve the circuit split and it’s likely to have that opportunity soon.” Lisa Keen discusses the cert denial in Evans at Keen News Service.

In two posts at the Election Law Blog, Nicholas Stephanopolous comments on the term’s two partisan gerrymandering cases, Gill v. Whitford, a Democratic challenge to Wisconsin’s statewide electoral maps, and Benisek v. Lamone, a challenge by Republican voters to a single congressional district in Maryland. Stephanopolous maintains here that “had the plaintiffs [in Benisek] attacked Maryland’s entire congressional map, they (likely) would have been entitled to prevail under the test adopted by the Whitford trial court.” Here, he elaborates on the convergences and divergences between the plaintiffs’ approaches in the two cases.
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Petition of the day

By on Dec 13, 2017 at 7:15 pm

The petition of the day is:

17-755

Issue: Whether proof that a tax scheme violates the dormant commerce clause by favoring in-state interests over out-of-state interests, and thereby advantages some competitors over others within the same market, is sufficient to entitle the disfavored competitors to a remedy.

Julie Rikelman is the senior director of litigation at the Center for Reproductive Rights.

Is there a First Amendment right to deceive the public about the services that a business provides, simply because those services involve reproductive health care? That is the central question in National Institute of Family and Life Advocates v. Becerra, a case about provisions in the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act.

California’s FACT Act ensures that women who are seeking time-sensitive reproductive health care services and end up at a crisis pregnancy center can quickly determine whether they have, quite literally, come to the wrong place. CPCs are a multi-million-dollar industry and exist in every state throughout the country; there are thousands of CPCs nationwide and approximately 200 CPCs in California alone. Further, many CPCs are affiliated with national umbrella organizations that provide administrative, strategic and technical support. NIFLA is one such organization. Specifically, NIFLA assists CPCs with undergoing “medical conversions,” as well as with legal advice on avoiding tort liability. Other umbrella organizations, such as Care Net, Heartbeat and the Vitae Foundation, provide a range of advertising support. As NIFLA acknowledges in its cert petition to the Supreme Court, its centers “operate according to their religious views” on reproductive decisions, including on contraception, single parenthood and abortion. No one contends that the CPCs and their staff lack First Amendment protection for their views or that they cannot seek to persuade others to share those views through lawful means.

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the cert petition in NIFLA v. Becerra, on which this essay is based, and will be doing so again at the merits stage.

Based on opposition to “crisis pregnancy centers” — which provide pregnancy-related services with the goal of helping women make choices other than abortion — the California legislature passed a law that burdens the centers’ speech. Specifically, the new law requires licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.”

The law has an exception for clinics that actually enroll clients in these public programs, so it targets only businesses that decline to participate in what is supposed to be a voluntary state program.

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Wednesday round-up

By on Dec 13, 2017 at 7:10 am

Briefly:

  • At Sports Handle, Ryan Rodenberg recounts his experience attending oral argument last week in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting.
  • The National Law Journal’s (subscription or registration required) continuing coverage and analysis of its research on Supreme Court clerks includes Karen Sloan’s profile of “four unlikely SCOTUS clerks” here and Tony Mauro’s report on Jones Day’s success in recruiting departing clerks here.
  • To mark yesterday’s anniversary of the Supreme Court’s 2000 decision in Bush v. Gore, Subscript offers a graphic explainer for the case, highlighting parallels between Bush v. Gore and Gill v. Whitford, a pending partisan-gerrymandering case in which “[t]he biggest issue … is whether the Court will rule the case nonjusticiable.”
  • At Law360 (subscription required), Vidya Kauri analyzes the oral argument in Marinello v. United States, in which the justices will consider the limits of tax-law obstruction charges, noting that several justices “appeared to take the position that the government’s interpretation of the so-called omnibus clause in Section 7212(a) of the Internal Revenue Code may be too far-reaching.”
  • At Justia’s Verdict blog, Michael Dorf 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 “[t]rading off liberty for equality … can be difficult in some cases, [b]ut Masterpiece Cakeshop is not one of those cases.”

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 Dec 12, 2017 at 10:35 pm

The petition of the day is:

17-749

Issues: (1) Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit’s three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson’s appeal, where the appeal sought review of the district court’s determination that a reasonable jury could find that Dr. Johnson violated respondent’s right to due process.

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