Wednesday round-up

By on Aug 23, 2017 at 11:45 am

With the start of the Supreme Court’s October sitting only a little over a month away, some coverage of the court focuses on cases scheduled for oral argument during that sitting. Subscript provides a graphic explainer for Epic Systems Corp. v. Lewis (and two consolidated cases), in which the Supreme Court will consider whether an individual-arbitration agreement for employment-related disputes is enforceable under the Federal Arbitration Act, notwithstanding provisions of the National Labor Relations Act. At The National Law Journal (subscription or registration required), Marcia Coyle provides additional coverage on these cases, which she describes as “the biggest workplace challenge in the coming U.S. Supreme Court term.” Counting to 5 (podcast) previews three immigration-related cases scheduled for oral argument in October – Sessions v. Dimaya, Jennings v. Rodriguez and Trump v. International Refugee Assistance Project.

The relationship between the Supreme Court and the recent violence in Charlottesville, Virginia continues to generate coverage and commentary. At The National Law Journal (subscription or registration required), Tony Mauro reports that as statues and busts of the late Chief Justice Roger Taney are taken down in Maryland, “at the U.S. Supreme Court, depictions of the author of the notorious Dred Scott decision are still visible—and not likely to disappear anytime soon.” At Take Care, Leah Litman and Helen Klein Murillo argue that the Supreme Court’s decisions in three cases from the last 15 years – Shelby County v. Holder, Grutter v. Bollinger and Parents Involved in Community Schools v. Seattle School District No. 1 – demonstrate reasoning similar to President Donald Trump’s in the wake of the Charlottesville violence, which they characterize as “minimization—to deny, implicitly, that something terrible and worthy of our collective condemnation had happened.”

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Petition of the day

By on Aug 22, 2017 at 7:30 pm

The petition of the day is:

17-132

Issue: Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] . . . unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing “believable evidence” to show that he lacked the requisite intent.

Tuesday round-up

By on Aug 22, 2017 at 11:18 am

Briefly:

  • At the George Washington Law Review’s On the Docket blog, Frank LoMonte looks at Matal v. Tam, in which the Supreme Court held that the disparagement clause of the Lanham Act violates the First Amendment’s free speech clause; he argues that this case is “welcome news for anyone who depends on a government-provided conduit to convey a message.”
  • At the International Municipal Lawyer Association’s Appellate Practice Blog, Lisa Soronen discusses the State and Local Legal Center’s amicus brief in Artis v. District of Columbia, in which the court will consider whether the statute of limitations for an employment discrimination claim under state law is put on hold while the claim is pending in federal court.
  • In an op-ed for The Washington Post, Elizabeth Wydra argues that Justice Neil “Gorsuch should reflect soberly on his decision to speak at [the Trump International Hotel], which lies at the center of not one but three cases that could come before him in the months ahead.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro, David Kopel and Matthew Larosiere discuss the institute’s amicus brief in Kolbe v. Hogan, a petition asking the Supreme Court to consider the constitutionality of a Maryland statute prohibiting ownership of assault weapons.
  • At The Franchise Project, Diana Tomezsko argues that the “events in Charlottesville recall Justice Ruth Bader Ginsburg’s acute dissent” in Shelby County v. Holder, in which the Supreme Court found Section 4 of the Voting Rights Act unconstitutional.
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Petition of the day

By on Aug 21, 2017 at 7:28 pm

The petition of the day is:

17-127

Issues: (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.

 
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Monday round-up

By on Aug 21, 2017 at 10:08 am

Briefly:

  • At her eponymous blog, Amy Howe introduces a series of posts looking at petitions distributed for the justices’ next conference in September. 
  • At The Economist’s Democracy in America blog, Steven Mazie discusses Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the justices have once again been asked to consider whether public-sector unions may require non-members to pay fees to cover certain union costs.
  • At Empirical SCOTUS, Adam Feldman examines new data from this past term concerning the size of the majority across different types of cases, the length of time between oral argument and when the justices release their opinions, and differences in the justices’ voting relationships with one another.
  • At the International Municipal Lawyer Association’s Appellate Practice Blog, Lisa Soronen discusses the State and Local Legal Center’s amicus brief in Husted v. A. Philip Randolph Institute, in which the Supreme Court will consider Ohio’s maintenance of its voter rolls under the National Voter Registration Act and the Help America Vote Act.
  • In an op-ed in the Los Angeles Times, Rick Hasen argues that “cheap speech, despite its undeniable benefits, has come with a steep price for our democracy,” and “a new conservative Supreme Court is more likely to make things worse than better.”
  • The Daily Journal’s podcast features a discussion of the Supreme Court’s past term with Kedar Bhatia, the producer of this blog’s annual Stat Pack.
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Petition of the day

By on Aug 18, 2017 at 10:22 pm

The petition of the day is:

17-60

Issues: (1) What standard should be used to evaluate establishment clause challenges to passive displays such as monuments; and (2) whether litigants have standing to challenge a monument on establishment clause grounds simply because they are offended by it.

Friday round-up

By on Aug 18, 2017 at 6:53 am

In The New York Times, Adam Liptak reports that the decision of Justice Neil Gorsuch “to address a conservative group at the Trump International Hotel in Washington next month, less than two weeks before the court is set to hear arguments on Mr. Trump’s travel ban,” has triggered criticism. Additional coverage comes from Ariane de Vogue at CNN, Matthew Nussbaum at Politico and Lydia Wheeler at The Hill.

Briefly:

  • Take Care’s Versus Trump podcast features a discussion with election-law attorney Marc Elias about several upcoming Supreme Court cases that involve voting rights, including a high-profile partisan-gerrymandering case, Gill v. Whitford.
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro urges the Supreme Court to review a case that offers the justices “an excellent opportunity to preferably overrule, but at least reconsider,” a prior decision requiring “a property owner [to] first sue in state court to ripen a federal takings claim”; he argues that the “state-remedies requirement results in constitutional absurdity: the very state court decision that a property owner must receive in order to ripen their claim simultaneously bars the owner from (re)litigating the issue in federal court.”

 Remember, we rely exclusively 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, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on Aug 17, 2017 at 10:22 pm

The petition of the day is:

17-99

Issues: (1) Whether the “substantial[ity]” and “federal-state balance” requirements of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing are satisfied whenever a federal law standard is referenced to inform the standard of care in a state-law cause of action, so long as the parties dispute whether federal law embodies the asserted standard; and (2) whether a federal court applying Grable to a case removed from state court must accept a colorable, purely state-law claim as sufficient to establish that the case does not “necessarily raise” a federal issue, even if the court believes the state court would ultimately reject the purely state-law basis for the claim on its merits.

Elbert Lin is the solicitor general of West Virginia. Thomas M. Johnson Jr. is the deputy solicitor general of West Virginia. The attorney general of West Virginia, Patrick Morrisey, led a certiorari-stage amicus brief in support of the petitioners.

Christie v. National Collegiate Athletic Association has the markings of a sleeper blockbuster. The Supreme Court granted certiorari despite the absence of any circuit split and over the opposition of the United States, which had been asked by the court for its views. The parties and their counsel give the case an Ali-Frazier feel. New Jersey Governor Chris Christie versus the National Collegiate Athletic Association and all four major professional sports leagues (the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball). Former U.S. Solicitor General Ted Olson versus his successor (and his principal deputy) Paul Clement. For Supreme Court junkies, you don’t get much closer to the Thrilla in Manila. And though our briefs take no position on the policy of legalizing betting on professional and collegiate sporting events, there is no denying that the court’s decision could have significant real-world effects on that industry.

The reason we, as representatives of our state, are watching the case? It could be the first Supreme Court decision since Printz v. United States in 1997 – and only the third in the court’s history — to strike down an act of Congress for violating the 10th Amendment under the anti-commandeering doctrine. In the decision under review, the en banc U.S. Court of Appeals for the 3rd Circuit held that the Professional and Amateur Sports Protection Act of 1992 bars states that have existing state-law prohibitions on sports betting from changing those laws to allow some betting. The Supreme Court could, and should, hold that the 10th Amendment doesn’t permit Congress to exercise that kind of direct control over state law and legislatures. That is a holding that should be welcomed by most states, whether red or blue, and whether they support sports gambling or not.

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Event announcement

By on Aug 17, 2017 at 12:13 pm

On August 31 at 1 p.m., in a webinar conducted by the State & Local Legal Center, John Baker will discuss how local governments have modified sign codes over the past two years to comply with Reed v. Town of Gilbert and how courts have interpreted the Reed decision. More information and registration are available at this link.

 
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