This week at the court

By on Dec 17, 2017 at 12:00 pm

The Supreme Court is on recess. The justices will meet next for their January 5 conference. The calendar for the January sitting, which begins on January 8, is available on the Supreme Court’s website.


Petition of the day

By on Dec 15, 2017 at 4:00 pm

The petition of the day is:


Issue: Whether a claim that parties to a collective bargaining agreement have violated the antitrust laws by conspiring to seize work controlled by employers outside the bargaining unit through coercion that violates the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4)(B) and 158(e), is barred as a matter of law by application of the nonstatutory labor exemption.

How the Grinch stole relists

By on Dec 15, 2017 at 12:19 pm

John Elwood reviews Monday’s relists, after a fashion.

Every Nerd

Down in Nerd-ville

Liked relists a lot …

But the Grinch,

Who lived just south of Nerd-ville,

Did NOT!

The Grinch hated relists! The whole relist thingy!

Now, please don’t ask why. Who can tell with that ninny?

It could be his head wasn’t screwed on just right.

It could be, perhaps, his work schedule’s too tight.

But I think what may have most rankled the rube,

Was he was sick of the search for sight gags on YouTube.

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The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. O’Brien’s  “Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board” (University Press of Kansas, 2017, pp. 220).

David O’Brien is the Leone Reaves and George W. Spicer Professor at the University of Virginia. He was a judicial fellow and research associate at the U.S. Supreme Court. O’Brien is the author of numerous books and over 100 articles, including “Storm Center: The Supreme Court in American Politics” (11th ed. W.W. Norton), which received the ABA’s Silver Gavel Award, and a two-volume casebook, “Constitutional Law and Politics” (10th ed., W.W. Norton 2017).

Welcome, David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book, which is quite extensive in its examination of Justice Robert Jackson’s views on Brown v. Board of Education.

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Friday round-up

By on Dec 15, 2017 at 7:02 am


  • 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] Thank you!

Posted in Round-up

Petitions of the day

By on Dec 14, 2017 at 5:17 pm

The petitions of the day are:


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).


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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Posted in Round-up

Petition of the day

By on Dec 13, 2017 at 7:15 pm

The petition of the day is:


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.

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