Ask any student of American law or history, and he or she will tell you that James Madison was the architect of the U.S. Constitution. As the author of the most comprehensive notes of the 1787 Constitutional Convention in Philadelphia and one of only two delegates to attend its every session, Madison has rightly earned this title. But if Madison was the Constitution’s architect, Edward Larson argued last week at a lecture sponsored by the Supreme Court Historical Society, then George Washington – the other delegate with perfect attendance – was its general contractor. And, as Larson quipped, a finished building looks a lot more like what the general contractor wanted than whatever the architect had envisioned.
John Elwood (barely) reviews Monday’s relisted cases.
In past years, we’ve commemorated Derby Week with a julep-fueled effort to outwork ourselves by fitting as many ridiculous names as possible into a post. It’s not our destiny to have such a dazzling gem this year; though we have mor spirit than ever, the creator of this feature has les time; I’m no exaggerator when I say that all my time must be devoted to argument prep, and I don’t have a whit more to spare. While I’ve enjoyed my break, happily, this should be the last of these short-form posts. My busy period is ending, and Tom’s ready for the regular Relist Watch to begin again. That means that when the Court returns with new orders on May 16 (perhaps with some opinions from my man Sam?), the fellowship of our readers will briefly break out the cherry wine to celebrate the return of cat videos and strained attempts at humor about sudden breaking news – swiftly followed by the sinking feeling that Relist Watch was never that funny. With that cheery introduction, here we go . . .
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Coverage relating to the nomination of Chief Judge Merrick Garland to succeed the late Justice Antonin Scalia comes from Tony Mauro, who in The National Law Journal (subscription or registration may be required) reports that eight “former U.S. solicitors general from Democratic and Republican administrations, most of whom are now prominent private practitioners, are publicly endorsing Judge Merrick Garland’s nomination to the U.S. Supreme Court.” In The Huffington Post, Cristian Farias reports on comments by retired Justice John Paul Stevens, who yesterday urged the Senate to “‘[g]o ahead and hold a hearing’ on Judge Merrick Garland.” In The Wall Street Journal, Jess Bravin reports that a “report by Congress’s nonpartisan research arm suggests U.S. Circuit Judge Merrick Garland would be a pragmatic voice if confirmed to the Supreme Court, scoring fewer ideological points and securing more victories than the outspoken conservative he would succeed, the late Justice Antonin Scalia.” In The Des Moines Register, Brianne Pfannenstiel reports that “U.S. Sen. Chuck Grassley said Wednesday he thinks Donald Trump, now the presumptive Republican nominee for president, would nominate the ‘right type of people’ to the U.S. Supreme Court.” Continue reading »
The petition of the day is:
Issue: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.
On June 29 at 11:45 a.m. (Pacific), the Marin County Bar Association will host a lunch on this past Term with Rory Little. More information and registration for this event, which will be held at the McInnis Club Restaurant in San Rafael, California, are available here.
Commentary relating to the death of Justice Antonin Scalia comes from the National Constitution Center, which hosted a panel (video; audio also available) on Scalia’s constitutional legacy; and Tony Mauro, who in an op-ed for USA Today notes that Scalia had not made a final decision regarding the disposition of his papers and argues that “the time has arrived for Congress to keep justices from shielding — or torching — documents the public deserves to see.” And in The Advocate, Mark Joseph Stern suggests that, because the “post-Scalia court will likely confront a host of legal questions important to the LGBT community, from antigay ‘religious liberty’ and employment discrimination to trans rights and bathroom access,” it “seems quite likely that Scalia’s successor will hold the key to LGBT equality on a divided court.” Continue reading »
Coverage relating to the death of Justice Antonin Scalia, its effect on the Court, and the nomination of Chief Judge Merrick Garland to succeed him comes from Hanna Trudo of Politico, who reports on comments by President Barack Obama to news outlets in battleground states. The National Law Review looks at the effect of Scalia’s death on the Fifth Circuit and circuit splits more generally. And Patricia Manson of the Chicago Daily Law Bulletin reports on an appearance by retired Justice John Paul Stevens and Justice Elena Kagan in Chicago; among other things, she notes, Stevens “predicted the vacancy created by Antonin G. Scalia’s death will not be filled until after President Barack Obama leaves the White House.” Continue reading »
The petition of the day is:
Issue: Whether individual detectives and an investigator are entitled to qualified immunity from a 42 U.S.C. § 1983 claim for malicious prosecution based on allegations they knew or should have known the criminal suspect had cognitive limitations making his confession to a crime untrustworthy and not appropriately relied upon by law enforcement to support his arrest.
On May 11 at 1 p.m., the State & Local Legal Center will host a discussion on decisions of the Roberts Court that have affected state and local governments. Speakers will include this blog’s Tom Goldstein, Adam Liptak, and David Savage. More information and registration for this webinar are available here.
And on May 19 at 12 p.m., the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies will host a discussion on the legacy of the late Justice Antonin Scalia. Speakers will include Stephanos Bibas, Josh Blackman, and Richard Garnett, Noel Francisco will provide a keynote address, and Elizabeth Slattery will host. More information about this event, which will be held at the Heritage Foundation’s Allison Auditorium in Washington, D.C., is available here.
Yesterday the Court issued orders from its April 29 Conference, adding two cases to its merits docket for next Term. Lyle Denniston covered the orders for this blog, while Mark Walsh covered the grant in Star Athletica v. Varsity Brands for Education Week. And Chris Geidner of BuzzFeed reports that the Justices ordered courts in Alabama to “review whether the process the state uses to sentence someone to death remains constitutional after a ruling from the justices earlier this year that struck down Florida’s similar sentencing process.”
Other coverage related to yesterday’s orders focused on the cases in which the Court denied review. Marina Koren reported for The Atlantic that yesterday the Justices declined to “consider a case from Native American inmates in Alabama prisons who want to wear their hair long in accordance with their religious beliefs and tradition.” Steven Nelson of U.S. News & World Report reported that the Justices also rejected a case involving the phone records of the late “D.C. madam.” Lawrence Hurley of Reuters reported that the Justices “declined a request from shareholders seeking to revive their class action lawsuit against BP claiming the British oil company misrepresented its safety procedures prior to the 2010 Gulf of Mexico oil spill.” And Daniel Wiessner of Reuters reported that the Justices “rejected a challenge by business groups to Seattle’s law raising its minimum wage to $15 an hour, a move echoed by other locales, in a case focusing on how the ordinance affected local franchises like McDonald’s.” Continue reading »