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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Steven D. Schwinn is a professor of law at John Marshall Law School in Chicago.

Students of the Constitution can be excused for scratching their heads at the anti-commandeering doctrine. That’s because this rule, which says that the federal government can’t require states or state officials to adopt or enforce federal law, has no basis in the text or history of the document. It has only weak support in precedent. And it’s unworkable.

Still, the doctrine is rearing its ugly head once again, this time in a pair of consolidated cases involving federal regulation of sports gambling. In particular, Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. NCAA raise the question whether the federal Professional and Amateur Sports Protection Act, which prohibits state-sanctioned sports gambling, runs afoul of the anti-commandeering doctrine when it prevents New Jersey from revoking portions of its prohibition on sports gambling. In other words, the cases ask whether the anti-commandeering doctrine prohibits the federal government not only from requiring states and state officials to adopt or apply federal law, but also from preventing states from repealing their own laws.

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Thursday round-up

By on Aug 17, 2017 at 7:39 am

In The Washington Times, Alex Swoyer reports that in an amicus brief filed this week in Carpenter v. United States, “[s]ome of the world’s biggest tech companies pleaded with the Supreme Court … to update decades-old precedent governing telephones, saying that cell-tracking technology threatens Americans’ most fundamental privacy rights.” Additional coverage comes from Andrew Chung at Reuters, who notes that “[t]he case comes amid growing scrutiny of the surveillance practices of U.S. law enforcement and intelligence agencies and concern among lawmakers across the political spectrum about civil liberties and police evading warrant requirements,” Steven Musil at CNET, and A.J. Dellinger at the International Business Times. At Reason’s Hit & Run blog, Damon Root argues that “’Get a warrant’ is the perfect message for the Supreme Court to tell the government in this case.”

Briefly:

  • In a book review at Jotwell, Steve Vladeck argues that the Supreme Court’s recent decision in Ziglar v. Abassi, “a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers,” “is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature.”
  • At Balkinization, Marty Lederman unpacks the federalism questions at the heart of Christie v. National Collegiate Athletic Association, in which the Supreme Court will decide whether a federal statute that prohibits New Jersey from repealing its ban on commercial sports betting is unconstitutional.

 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 16, 2017 at 10:22 pm

The petition of the day is:

17-95

Issues: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1912(d) and 1912(f), applies in a private severance action initiated by one birth parent against the other birth parent of an Indian child; and (2) whether, if the sections apply in such an action, this de jure discrimination and separate-and-substandard treatment of Indian children violate the due process and equal protection guarantees of the Fifth and Fourteenth Amendments.

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