The following is a series of questions prompted by Stephanie Slater’s “Edward Terry Sanford: A Tennessean on the U.S. Supreme Court” (University of Tennessee Press, 2018). This is the first biography of a justice whose contributions to the Supreme Court in the 1920s were overshadowed in life by those of his more famous colleagues, including Justices Oliver Wendell Holmes and Louis Brandeis, and even in death, because he passed away on the same day as retired Chief Justice William Howard Taft. This work shines a new light on Sanford’s place in history and on the Taft Court.

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Welcome, Stephanie, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

QUESTION: In the opening paragraph of your final chapter, you quote a senator during the unsuccessful 1970 confirmation hearing for Judge G. Harrold Carswell: “I realize that men of limited capacity have served on the Court in the past. … For every Oliver Wendell Holmes, we can dredge up an Edward T. Sanford.” It remains largely true today that, as you write, “Sanford is essentially consigned to oblivion.”

“It is time for Sanford to emerge from obscurity,” you claim. Why?

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It’s an off week for the Supreme Court, so we’ve got another great ensemble cast to take a deep dive into issues that regularly come up on the show. Kate Shaw of Cardozo Law guest hosts with Leah Litman. Anne Joseph O’Connell joins us to discuss the appointment of Acting Attorney General Matthew Whitaker, and Richard Primus gives us the lowdown on different methods of constitutional interpretation.

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Monday round-up

By on Dec 17, 2018 at 6:51 am

At Bloomberg, Greg Stohr reports that “[t]he Trump administration is aggressively trying to take advantage of the U.S. Supreme Court’s new conservative majority, digging deep into the court’s rulebook to seek quick action on divisive issues.” Ariane de Vogue reports at CNN that “[t]he court, with its strong 5-4 conservative majority, is facing requests from an aggressive Trump administration to weigh in early on many of its most controversial policies in areas including immigration, LBGT rights, asylum and reinstating the citizenship question on the census.”

Devin Dwyer reports at ABC News that Supreme Court Justice Ruth Bader Ginsburg, speaking at a naturalization ceremony on Friday “in her first public remarks following a health scare last month, hailed immigrants as the ‘vanguard’ of an effort to remove ‘stains’ of discrimination from American society.” Additional coverage comes from Morgan Gstalter at The Hill.

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This week at the court

By on Dec 16, 2018 at 12:00 pm

The Supreme Court is between sittings.

The justices will meet next for their January 4 conference; John Elwood’s Relist Watch compiles the petitions likely relisted for this conference.

The calendar for the January sitting, which will begin on January 7, is available on the Supreme Court’s website.

 
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A week ago we posted a survey soliciting reader feedback (which can be found here). We received many responses, and we’re grateful to everyone who took the time to answer. We will be considering your responses and suggestions in the days ahead.

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Last month the Supreme Court announced that it would, for the second time, review a case from Virginia challenging the legislative districts drawn in 2011 for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – the idea that legislators relied too much on race when drawing the maps. Today Virginia legislators were back at the court, asking the justices to block proceedings in the lower court aimed at coming up with new maps for the 2019 election until the Supreme Court can rule on the dispute.

The Virginia case is one with which the justices are already very familiar. Last year, the court ruled that a lower court had applied the wrong legal standard when it rejected claims that 12 districts were the product of racial gerrymandering. The Supreme Court upheld one district, but it ordered the lower court to take a fresh look at the other 11 – and, in particular, at whether race was the primary factor used to draw those districts.

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Petitions of the week

By on Dec 14, 2018 at 9:34 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the applicability of the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act to certain suits; whether the establishment clause precludes courts from considering relevant, admissible secular evidence in ordinary trust and property disputes because the litigants are religious parties; and the jurisdiction of federal courts pursuant to Section 301(a) of the Labor Management Relations Act in a suit seeking relief for the violation of a collective-bargaining agreement.

The petitions of the week are:

18-530

Issues: (1) Whether, in ordinary trust and property disputes, the establishment clause precludes courts from considering secular evidence that is relevant and admissible under governing state law merely because the litigants are religious parties; (2) whether, in ordinary trust and property disputes, excluding secular evidence that is relevant and admissible under state law merely because the litigants are religious parties violates the free exercise clause by treating religious parties differently from—and, here, less favorably than—secular parties; and (3) whether, in ordinary trust and property disputes, federal courts sitting in diversity may disregard governing state substantive law and fashion federal common law merely because the litigants are religious parties.

18-580

Issue: Whether federal courts have subject-matter jurisdiction pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), over a complaint for intentional and negligent misrepresentation and declaratory relief, when the lawsuit seeks relief from claims that the plaintiff violated the parties’ collective-bargaining agreement.

18-575

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

18-581

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

Friday round-up

By on Dec 14, 2018 at 6:58 am

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that the federal government yesterday asked the Supreme Court to allow it to enforce the Trump administration’s ban on service in the military by transgender people while its appeals of adverse decisions in three cases play out in the lower courts. At CNN, Ariane de Vogue and Devan Cole report that “[t]he administration already has a pending request for the Supreme Court to bypass the lower courts and take up a case concerning the ban, which has been blocked by lower courts,” and that “[n]ow the Department of Justice is taking it a step further” by seeking permission to implement the ban if the Supreme Court does not take up the cases this term. Additional coverage comes from Kimberly Robinson at Bloomberg Law.

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Last month the Trump administration asked the justices to allow it to bypass the courts of appeals and immediately take up three cases (herehere and here) challenging the government’s ban on service in the military by most transgender individuals. Today the administration was back at the Supreme Court, giving the government a back-up option: If the justices don’t want to bypass the courts of appeals, they should at least allow the government to enforce the ban while the appeals play out. The application for emergency relief was the second one this week from the government, which on Tuesday asked the justices to allow it to enforce a policy that would bar immigrants who enter the country illegally along the southern border from seeking asylum. These kinds of requests for emergency relief have been made necessary, the Trump administration contended, because the lower courts have often gone too far, thwarting the government’s efforts to implement important policies.

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This term, the Supreme Court will hear argument in its 100th case decided below by the U.S. Court of Appeals for the Federal Circuit. The Supreme Court’s recent grant of Kisor v. Wilkie also marks the fourth case granted from the Federal Circuit this term. This is by no means a small fraction of the Supreme Court’s total caseload. In terms of federal courts of appeals, the Supreme Court has only granted more cases this term from the U.S. Courts of Appeals for the 2nd, 6th, 9th and 11th Circuits. When we look at the number of cases filed in these courts, though, the Federal Circuit’s filings make up less than three percent of the total filings across the appeals circuits.

Click graph to enlarge.

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