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The Supreme Court will release orders from the November 16 conference on Monday at 9:30 a.m.

This week at the court

By on Nov 18, 2018 at 12:00 pm

The Supreme Court will release orders from the November 16 conference on Monday at 9:30 a.m; John Elwood’s Relist Watch compiles the petitions that were relisted for this conference.

The calendar for the December sitting, which will begin on Monday, November 26, is available on the Supreme Court’s website.


Since the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ interim successor. That argument may soon receive a conclusive resolution, thanks to an unusual motion filed in the Supreme Court late on Friday afternoon.

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The Supreme Court announced this afternoon that it would hear oral argument in February in a dispute over evidence in the challenge to the government’s decision to add a question about citizenship to the 2020 census. The order is the latest chapter at the court for the case; the justices had previously rejected the government’s request to put the trial in the case on hold, allowing the trial to go forward (now nearly to completion) earlier this month.

The events giving rise to the dispute now before the Supreme Court arose in March of this year, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship, intended to help the Department of Justice enforce federal voting-rights laws. A group of states (led by New York), cities and counties challenged that decision; they argued that including such a question would skew the results of the census, because it would deter households with undocumented immigrants from responding.

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Friday round-up

By on Nov 16, 2018 at 6:56 am

For The Baltimore Sun, Michael Dresser reports that “Maryland Attorney General Brian Frosh announced Thursday that he is appealing a federal ruling that threw out the state’s congressional map for the 6th District after determining that Democratic officials unconstitutionally drew the boundary to diminish Republican influence.” Jess Bravin reports for The Wall Street Journal that “[m]ost gerrymandering lawsuits have invoked the 14th Amendment’s equal-protection guarantee, contending that lawmakers violated their duty to treat all voters equally,” but “[t]he Maryland case, in contrast, is based on First Amendment arguments that the state violated the free-speech and free-association rights of individual voters,” which “may make a difference with a right-leaning Supreme Court.” Additional coverage comes from Ann Marimow and Erin Cox for The Washington Post, who report that “[a]dvocates for redistricting reform in Maryland see Frosh’s appeal as a chance for the Supreme Court to spell out clear rules that would apply to every state in the country.” At Jost on Justice, Kenneth Jost explains why federal court intervention is necessary to curb political gerrymanders.

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Petitions of the week

By on Nov 15, 2018 at 10:29 am

This week we highlight petitions pending before the Supreme Court that address whether plaintiffs may obtain certification of issue classes for a cause of action under Rule 23(c)(4) without having demonstrated that common issues predominate under Rule 23(b)(3), the creation of a particular inferred private right of action via Section 14(e) of the Securities Exchange Act of 1934, and the constitutionality of the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B).

The petitions of the week are:


Issue: Whether the U.S. Court of Appeals for the 9th Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer.


Issue: Whether plaintiffs, having failed to demonstrate that common issues predominate over individual issues as to their cause of action under Federal Rule of Civil Procedure 23(b)(3), may nevertheless obtain certification of issue classes for that cause of action under Rule 23(c)(4).


Issue: Whether the subsection-specific definition of ”crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.


Issue: Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.

Thursday round-up

By on Nov 15, 2018 at 7:11 am


  • The AP reports that “[t]wo journalists who helped cover the confirmation process of Brett Kavanaugh are working on a book about the newest Supreme Court justice.”
  • At Law.com, Tony Mauro covers the recent uptick in law firm bonuses for Supreme Court clerks, reporting that “the prevailing hiring bonus for Supreme Court clerks is $400,000—up from $300,000 in 2015,” and that “[i]f the trend continues, the clerk bonus will soon approach twice the annual salary of the justices they work for.”
  • In an op-ed for The Washington Post, Brett Reistad explains the significance to veterans and others of the monument at issue in American Legion v. American Humanist Association, an establishment clause challenge to the placement on public land of a World War I memorial shaped like a cross.

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Relist Watch

By on Nov 14, 2018 at 3:22 pm

John Elwood reviews Tuesday’s relists, er, relist.

For the longest time, to be called “national,” a thing had to be either really good or really bad. A trip through the alphabet reminds us of such noteworthy things as the national anthem, the National Book Award, National Car Rental, a national disgrace, the National Enquirer, the National Football League, National Geographic, a national holiday, the NIH, the National Journal, the National Mall, national news, NPR, the National Review, national security, the NTSB, national university, National Velvet, the National Weather Service and the National Zoo. Even the hard letters yield things you can get behind: national kissing day, National O-style guitars, the national quiz bowl, the national youth leadership forum and perhaps the best of all – the national xenopus resource.

But beginning this week, the newly invented name for an unloved neighborhood of a gently mocked suburb of a widely despised city will, for the foreseeable future, be the top Google result you will find when you search for “national l” – National Landing.

Hard as it is to believe, the arrival of Amazon on the outskirts of the national capital has overshadowed the second-biggest story in the national headlines about D.C. this week: the disposition of last week’s seven relists. As suspected, Justice Sonia Sotomayor was unable to persuade the court to grant review in the cases, involving application of harmless error to Florida’s since-invalidated capital-sentencing scheme, which used advisory juries to make a recommendation to the trial judges who would actually decide whether to impose a sentence of death. Instead, Sotomayor filed her fifth opinion dissenting from denial of certiorari on the issue.

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Common sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As Hasen explains, the research shows that polarization influences the appointment and confirmation process, along with the cases the court accepts and how it decides them, as well as the public’s perception of the court and its decisions. Although polarization has many negative consequences for the courts, it also empowers them: When the political branches are gridlocked, the courts, and ultimately the Supreme Court, have the last word on contentious policy questions such as immigration, limits on executive power and access to abortion.

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Wednesday round-up

By on Nov 14, 2018 at 6:45 am

Yesterday the court released orders from last week’s conference, adding two cases to its merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For The Washington Post, Gregory Schneider and Robert Barnes report that in Virginia House of Delegates v. Bethune-Hill, “[t]he U.S. Supreme Court will take up the issue of redistricting in Virginia, agreeing to hear an appeal filed by Republican legislators after a lower court’s ruling that 11 House of Delegates districts must be redrawn to correct racial gerrymandering.” In a guest post at the Election Law Blog, Michael Parsons suggests that “[t]he conservative wing of the Court may see this case as a good vehicle to emphasize just how reticent courts should be to step in and police these boundaries generally.” At ThinkProgress, Ian Millhiser writes that “[i]n a sensible world, Bethune-Hill would have nothing whatsoever to do with the Affordable Care Act,” but that the case “also presents a difficult issue regarding when non-parties to a federal lawsuit may appeal lower court decisions to a higher authority,” [a]nd this technical question could have tremendous implications for Obamacare.”

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This morning the justices issued orders from last week’s private conference. They added two new cases to their merits docket for the term and denied review in a group of capital cases from Florida, with the latter spurring three separate (and sometimes strongly worded) opinions.

The justices will once again return to the subject of racial gerrymandering, in a case from Virginia challenging the districting plan drawn in 2011 for the state’s House of Delegates. In 2017, the Supreme Court ruled that a three-judge district court had applied the wrong legal standard when it upheld 12 districts against claims that they were the product of racial gerrymandering. The justices sent the case back to the lower court, ordering it to take another look at 11 of those districts – and, in particular, whether race was the primary factor used to draw the districts. (The justices upheld the 12th district.)

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