Monday round-up

By on Oct 23, 2017 at 7:11 am

For The Washington Post, Robert Barnes reports that Chief Justice John Roberts has met with criticism for suggesting during the oral argument in partisan-gerrymandering case Gill v. Whitford “that forcing the court to make … decisions” about “when normal politics became unconstitutional bias” “would put the justices in a no-win position and tarnish the reputation that they — he — had worked hard to burnish.” At the Post’s Volokh Conspiracy blog, David Post hopes that the court does not rely on its relative lack of expertise in statistical analysis to “abdicate its responsibility” in Whitford “to craft some meaningful and manageable measures of partisan interference with the electoral process.”

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This week at the court

By on Oct 22, 2017 at 12:00 pm

On Friday the justices will meet for their October 27 conference; our list of “petitions to watch” for that conference will be available soon. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

 
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Petition of the day

By on Oct 20, 2017 at 8:20 pm

The petition of the day is:

17-441

Issue: Whether, or in what circumstances, a plaintiff adequately pleads a “continuing violation” of the antitrust laws, sufficient to satisfy the statute of limitations, by alleging continuing sales during the limitations period when the alleged price-fixing conspiracy was formed outside the limitations period.

In Texas v. White in 1869, Chief Justice Salmon Chase famously wrote for the Supreme Court that the “Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” Chase’s opinion rejecting state secession may seem today like a foregone conclusion, an unsurprising legal corollary to the Union’s victory on the battlefield.

For the court-watchers of the 1860s – #AppellateQuillPens – the ruling was much less obvious, especially given its author. Just one year previously, Chase had avoided reaching this holding in a different case – Jefferson Davis’ trial for treason. Chase maintained in both cases that he was following only the dictates of logic. In a lecture sponsored by the Supreme Court Historical Society, law professor Cynthia Nicoletti told a different story that suggests Chase had more personal motivations.

Professor Cynthia Nicoletti lectures on Chief Justice Salmon Chase (Art Lien)

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Friday round-up

By on Oct 20, 2017 at 6:53 am

Briefly:

  • Subscript offers a graphic explainer on Wilson v. Sellers, which asks whether a federal court in a habeas case should “look through” a summary state-court ruling to review the last reasoned state-court decision.
  • At The Federalist, Margot Cleveland suggests that this week’s most significant Supreme Court order concerned an administrative-law case the justices’ didn’t take, and that “Monday’s order in Scenic America [v. Department of Transportationprovides the first evidence that [Justice Neil] Gorsuch intends to challenge Chevron deference and that he possesses the gravitas necessary to sway his colleagues.”
  • At The American Prospect, Dorothy Samuels weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[g]ranting business owners exemptions from anti-discrimination laws based on their religious beliefs would be a radical development, extending a new constitutional right.”
  • At SportsHandle, Brett Smiley looks at the NCAA’s brief in the New Jersey sports-betting case, Christie v. National Collegiate Athletic Association.

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Petition of the day

By on Oct 19, 2017 at 8:20 pm

The petition of the day is:

17-432

Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

Thursday round-up

By on Oct 19, 2017 at 7:02 am

Briefly:

  • At Lawfare, Anthony Bellia and Bradford Clark, the authors of scholarship cited by Justice Neil Gorsuch during last week’s oral argument in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute, point out that the court has never considered “whether permitting a suit solely between aliens under the ATS would violate Article III,” and suggest that “[d]oing so in Jesner would obviate the need to resolve other more difficult questions (such as corporate liability) that are not necessary to decide the case.”
  • In an op-ed for The New York Times, Jennifer Daskal explains why the court’s recent decision to review digital-privacy case United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas, “is a clarion call for Congressional action.”
  • At Take Care, Robert Post unpacks the Department of Justice’s amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[t]o key heightened First Amendment scrutiny to the expressive properties of human action,” as DOJ does in supporting the baker, “is … to risk stretching the First Amendment to encompass everything, which means that it will protect nothing.”
  • At The National Law Journal (subscription or registration required), Marcia Coyle looks at incoming Apple general counsel Kate Adams’ formative experience as a law clerk to retired Justice Sandra Day O’Connor.

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

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Petition of the day

By on Oct 18, 2017 at 8:30 pm

The petition of the day is:

17-431

Issue: Whether a regulation is content-based for purposes of the First Amendment when it only applies to unattended receptacles that solicit donations or collections.

Wednesday round-up

By on Oct 18, 2017 at 7:15 am

Yesterday the court removed securities-fraud case Leidos, Inc. v. Indiana Public Retirement System from the November argument calendar. At Bloomberg, Greg Stohr reports that the move came “after the two sides told the justices they are near a settlement,” and that the case had “asked the court to clarify investors’ ability to sue companies for omitting information from shareholder reports.” Additional coverage of the settlement in Leidos comes from Jack Newsham at Law360 (subscription required).

During the break between argument sessions, the justices’ off-the-bench activities are drawing attention. For this blog, Andrew Hamm highlights recent remarks by Justice Elena Kagan at the Chicago-Kent College of Law. Additional coverage comes from Steve Schmadeke for the Chicago Tribune, who reports that “Kagan did not directly address the perception that the court has become increasingly politicized but instead emphasized that more than half of the court’s cases are decided unanimously.” For the Queens Chronicle, Ryan Brady covers a recent appearance by Justice Sonia Sotomayor at Queens College. Michael Ortiz and Jill Leavey report for the Hofstra Chronicle that while in New York, Sotomayor also “had an intimate conversation with Hofstra’s law students about how she made it from the Bronx to the bench.” And for the New York Post, Rebecca Santiago talks to Justice Ruth Bader Ginsburg’s personal trainer about the justice’s famous twice-weekly workouts. For USA Today, Richard Wolf recounts his personal experience with the RBG workout program, which “clearly showed that the justice keeps fit.”

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Petition of the day

By on Oct 17, 2017 at 8:20 pm

The petition of the day is:

17-419

Issue: Whether the Supreme Court’s precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.

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