Editor's Note :

Editor's Note :

We expect orders from the justices' May 25 conference on Tuesday at 9:30 a.m. There is also a possibility of opinions on Tuesday at 10 a.m. We will begin live-blogging at 9:25 a.m.

This week at the court

By on May 28, 2017 at 12:10 pm

We expect orders from the May 25 conference on Tuesday at 9:30 a.m. There is also a possibility of opinions on Tuesday. On Thursday the justices will meet for their June 1 conference; our list of “petitions to watch” for that conference will be available soon.

 
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Petitions of the day

By on May 26, 2017 at 11:23 pm

The petitions of the day are:

16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbertestablishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious non-profits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

In response to requests from the Supreme Court, Acting Solicitor General Jeffrey Wall this week filed 10 briefs expressing the views of the United States. The justices sometimes invite the federal government to weigh in when they are deciding whether to review a case on the merits and, although the federal government is not directly involved the case, the court believes that the government may have an interest – for example, when the case involves the interpretation of a federal law. Although the government’s recommendation is not dispositive, it generally carries significant weight with the justices, especially when the government recommends that review be granted.

The federal government recommended that review be granted in two cases in which it filed briefs. One of those cases was Rubin v. Islamic Republic of Iran, in which the plaintiffs obtained a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem and are seeking to enforce the judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. As a general rule, the Foreign Sovereign Immunities Act protects property in the United States that is owned by foreign governments from being seized, but there are exceptions to that rule, including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” The two questions that the court has been asked to consider in Rubin relate to the scope of those exceptions.

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Rachael K. Hinkle is an Assistant Professor of Political Science at the University at Buffalo, SUNY. Morgan Hazelton is an Assistant Professor of Political Science and Law (by Courtesy) at St. Louis University. Michael J. Nelson is an Assistant Professor of Political Science and Affiliate Law Faculty at Pennsylvania State University.

In the modern Supreme Court, public disagreement is often the order of the day. The current polarized political environment renders it natural to focus on what divides us rather than on what unites us. We reverse this focus in our research and explore centripetal social forces that draw people together. Specifically, we provide empirical evidence that increased interpersonal interaction between judges leads to greater consensus on federal appellate courts, even the Supreme Court.

Despite the old adage that familiarity breeds contempt, there is reason to believe that people who spend time together develop relationships that facilitate cooperation, compromise and agreement. Research indicates that early 19th-century legislators who both lived and worked together were more likely to reach consensus, even across party lines. Even Chief Justice John Marshall believed in the salutary effects of such an arrangement. According to G. Edward White, between 1815 and 1830 Marshall organized boardinghouse accommodations for the justices each year and ensured that all the justices stayed there together during the Supreme Court term. In a 1931 letter to Justice Joseph Story, Marshall explained his concern that geographic dispersal would undermine the unanimity of the court’s decisions. The data from Supreme Court terms during the relevant time period bear out this concern. As Figure 1 shows, dissenting votes decreased markedly in the 1816 term, after the justices began their new living arrangements. Conversely, dissenting votes spiked, and then began an increasing trend upward, in 1830, the final year that the justices lived together.

Figure 1: Dissenting votes in the U.S. Supreme Court during the 19th century

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Relist Watch

By on May 26, 2017 at 9:29 am

John Elwood reviews Monday’s relists.

The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question whether Patent Trial and Appeal Board opinions must address all the claims of patent challengers in inter partes review, or just the ones the Board feels like addressing. But it was bad news for one-time capital-case relist Neal v. Kubsch, 16-1021, regarding the admissibility of hearsay evidence. And worst of all, the court denied the big knot of seven state tax retroactivity cases that was on its fourth relist. I have it on good authority that those cases were exquisitely exciting, too. Aside from those nine relists, all the cases from last week are back again, although their chances aren’t getting any better.

That brings us to this week’s three-ish new relists. Our first entry, Husted v. A. Philip Randoph Institute, 16-980, is another in a string of recent high-profile voting cases. Husted involves what steps states may take to maintain accurate voter-registration lists under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. Those laws prohibit states from removing “the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote,” but provide that a state must remove a voter if the voter (1) does not respond to a confirmation notice the state sends them and (2) then does not vote in the next two general federal elections. Since 1994, Ohio has sent voters who do not vote over a two-year period a confirmation notice; if they do not respond to that notice and do not vote over the next four years (including two more federal elections), Ohio removes them from the list of registered voters and requires them to reregister.

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Friday round-up

By on May 26, 2017 at 8:08 am

Reid Wilson reports for The Hill that Cooper v. Harris, in which the justices upheld a lower court’s ruling that North Carolina relied too heavily on race in drawing the boundaries of two congressional districts, “is being hailed as a victory for voting rights advocates — though some caution that the path ahead for Democrats fighting gerrymandering has just become more treacherous.” In USA Today, Richard Wolf reports that a “Supreme Court that prides itself on trying to remain above politics will be forced to rule soon on what one justice calls the ‘always unsavory’ process of drawing election districts for partisan gain,” noting that a “case headed its way from Wisconsin, along with others from Maryland and North Carolina, will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?”

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Petition of the day

By on May 25, 2017 at 11:23 pm

The petition of the day is:

16-1137

Issue(s): Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

[UPDATED at 10:12 a.m. on Friday, May 26, to include a press release by Attorney General Jeff Sessions, who indicated that the Trump administration intends to ask the Supreme Court to step in.]

A divided U.S. Court of Appeals for the 4th Circuit today largely upheld a federal district judge’s ruling blocking the implementation of the executive order signed by President Donald Trump on March 6. The order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States, but a federal judge in Maryland put the order on hold 10 days later. That order now remains in place, setting up a potential showdown over the travel ban in the Supreme Court.

Writing for the court in an opinion that was joined in full by six other judges, with three more agreeing with the result in the case, Chief Judge Roger Gregory framed the issue before the 4th Circuit starkly: whether the Constitution protects the challengers’ “right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Congress, the court concluded, gave the president “broad power to deny entry to aliens, but that power is not absolute.”

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Thursday round-up

By on May 25, 2017 at 7:10 am

At Governing, Alan Greenblatt discusses how the “’efficiency gap,’” which “works by looking at how many votes for one party are wasted,” may provide “the missing piece for complainants” seeking to “statistically prove intent when it comes to partisan gerrymanders” like the one at issue in Gill v. Whitford, a pending cert petition the justices will consider at their June 8 conference. At Slate, Mark Joseph Stern worries that Justice Anthony Kennedy’s decision to join the dissenting opinion in Monday’s racial-gerrymandering decision, Cooper v. Harris, in which the justices upheld a lower court’s ruling that North Carolina relied too heavily on race in drawing the boundaries of two congressional districts, “suggests the justice might not be ready to take down partisan gerrymandering.” At Balkinization, Chris Elmendorf maintains that Monday’s decision, along with another racial-gerrymandering case decided earlier this term, shows that “the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice.” In a column for The New York Times, Linda Greenhouse argues that “election law … represents a front in the culture wars,” and that “the justices are as fully engaged in combat as anyone else.”

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Petition of the day

By on May 24, 2017 at 11:23 pm

The petition of the day is:

16-1130

Issue: Whether foreign tax payments should be treated as “expenses” and thereby factored into a court’s pre-tax profitability calculation under the economic substance test.

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