Today the court will hear oral argument in two cases. First up is Nelson v. Colorado, a due process challenge to Colorado’s requirement that defendants whose convictions are later reversed must prove their innocence before receiving refunds of monetary penalties. Steve Vladeck previewed the case for this blog. Andrew Maury and Nicholas Velonis also provide a preview for Cornell’s Legal Information Institute. Another look at the briefing in the case comes from Garrett Epps in The Atlantic, who suggests that “Colorado’s main argument seems to be written between the lines”: “May it please the Court, their brief whispers, these two may have escaped justice on a technicality, but we all know they are guilty as hell”; he hopes this “thoroughly unappealing advocacy” “will not sway four of the eight.”

The next case on the argument agenda is Lewis v. Clarke, which asks whether tribal sovereignty bars a lawsuit in state court against a limousine driver who rear-ended the plaintiffs while driving his passengers home from a tribe-owned casino. Todd Henderson provided this blog’s preview. Another preview comes from Cornell. The George Washington Law Review’s On the Docket previews all the cases in the January sitting.

At PrawfsBlawg, Howard Wasserman looks ahead to the next chapter in the Supreme Court vacancy saga, observing that “when the system breaks down is when strange compromises–that leave no one satisfied–can find a footing.” In a column in Bloomberg View, Noah Feldman notes that Senate Minority Leader Chuck Schumer’s threat to block a non-mainstream nominee, coupled with the possibility that some Senate Republicans may be unwilling to jettison the filibuster for Supreme Court nominees, could lead to a situation in which, “instead of filling Supreme Court seats as they became vacant, the court would shrink in size until the president and 60 senators came from the same party, or until the Senate majority was willing to eliminate the Supreme Court filibuster,” when “the president would fill all the vacancies, winner take all.”


  • In an op-ed in The Washington Post, Shirin Sinnar weighs in on Ziglar v. Abbasi, a suit against former high-ranking federal officials stemming from detentions of Middle Eastern men in the wake of the September 11 attacks, maintaining that in “the final case of the Obama administration, lawyers for a president avowedly committed to the rule of law will empower a successor threatening to demolish it.”
  • In an article posted on SSRN, Scott Meisler examines the criminal procedure and habeas corpus jurisprudence of two judges on Donald Trump’s shortlist, William Pryor and Diane Sykes, concluding that “whereas Judge Sykes has applied (and arguably extended) recent Supreme Court precedent in a way that would afford relief to criminal defendants and federal prisoners, Judge Pryor has interpreted precedent more narrowly to deny relief—even when the government urged the defendant-friendly view,” and that if the two judges are finalists for the vacancy, as some have suggested, “the President-elect’s choice may well boil down to whether he wants a Justice in the mold of Scalia or of Alito.”
  • At his Election Law Blog, Rick Hasen notes that North Carolina has filed a cert petition asking the Supreme Court to review an appeals court decision striking down the state’s “’monster’ voting law” as “motivated by racially discriminatory intent”; he wonders “what happens to this litigation now that the governor is a Democrat who has opposed this law.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jan. 9, 2017, 6:53 AM),