Friday round-up

By on Jul 24, 2015 at 7:39 am

Briefly:

  • In The Washington Times, Tom Howell Jr. reports that, “[r]oughly a week after its loss before an appeals court in Denver, a group of nuns who objected to Obamacare’s birth-control mandate have taken their case to the Supreme Court.”
  • David Lightman of McClatchyDC reports on an exchange between Republican presidential candidate Rick Santorum and television host Rachel Maddow on the role of the Supreme Court.

The round-up will be on vacation next week.  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 when we come back, please send it to roundup [at] scotusblog.com.

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A federal appeals court, arguing that the Supreme Court’s abortion rights rulings leave too little room for states to limit the procedure to protect fetal life, has urged the Justices to reconsider a basic idea behind Roe v. Wade.  The idea, never explicitly abandoned by the Court, is that states are forbidden to ban abortions before a fetus is capable of living outside the woman’s body.

The U.S. Court of Appeals for the Eighth Circuit, in a new ruling on Wednesday involving the nation’s most restrictive abortion control law, argued that the so-called “fetal viability” approach has become “unsatisfactory” because it has not kept pace with changes in fetal medicine.  Although the North Dakota law at issued was struck down, the three-judge panel made it clear it ruled that way because the Court had given it no choice, but that it was troubled at having to do so.  State legislatures, not courts, should be making decisions about the state of medical science, it said.

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As of now, the Court has granted certiorari (or, in one “original jurisdiction” case, Mississippi v. Tennessee, review) in thirty-five cases for the upcoming Term.  That is nine more cases than at the same time last Term — but I would still expect a number of new cases to be added to the docket after the Court’s “opening conference” on September 28, 2015.

Eleven of the cases in which review has already been granted for the next Term are criminal-law or related (under my generous standards).  The Eighth Amendment portends to be a particular focus: four cases involve the death penalty, and a fifth involves juvenile life without parole.  The other interesting note is that, so far, not a single case granted for next Term involves the Fourth Amendment.  I can’t recall a prior Term where that was true at the end of the prior Term.

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Thursday round-up

By on Jul 23, 2015 at 9:26 am

Briefly:

  • In her column for The New York Times, Linda Greenhouse discusses the challenges to the Affordable Care Act’s birth-control mandate by religious non-profits and the possibility that the groups’ “argument goes too far, even for the Roberts court.”
  • In the Supreme Court Brief (subscription required), Tony Mauro reports that the “recent release of the annual financial disclosure forms submitted by U.S. Supreme Court justices has renewed the debate over when justices should recuse in pending cases and how they should avoid conflicts of interest.”
  • In The National Law Journal (subscription or registration required), Marcia Coyle reports that the Court’s “recent decisions on same-sex marriage and health care served as the catalysts for” Republican presidential candidate Ted Cruz’s “Senate hearing Wednesday on retention elections, term limits and other means to rein in what he labeled the justices’ ‘lawlessness.’”
  • In the Supreme Court Brief (subscription required), Coyle reports that “[l]egal challenges to solitary-confinement policies are working their way through the federal courts to the U.S. Supreme Court faster than one justice in particular may have anticipated.”
  • In another story for the Supreme Court Brief (subscription required), Coyle reports that awards of attorney’s fees in patent cases have increased in the wake of the Court’s 2014 decision in Octane Fitness v. Icon Health & Fitness.
  • In USA Today, Richard Wolf reports on the legal battles – often involving religious objections to same-sex marriage by providers of wedding services – that are brewing in the wake of the Court’s same-sex marriage decision.
  • In an op-ed for The Week, Scott Lemieux criticizes comments by Michael Cannon, one of the architects of the challenge to the availability of tax subsidies under the ACA; he contends that the fact that the challenge “was based on an almost comically transparent historical sham surely helps to explain why Roberts rejected the argument of the plaintiffs so forcefully.”
  • In an op-ed for The Washington Post, Lee Rowland argues that, “when the Supreme Court had its chance to weigh in on the Confederate flag debate — and protect the First Amendment rights of Texans who wanted to display it on their cars’ license plates — the Court got it wrong.”

A friendly reminder:  We rely on our readers to send us links for the 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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In her contribution to the Yale Law Journal’s symposium on arbitration, Judith Resnik analyzes the last thirty years of the Supreme Court’s cases interpreting the Federal Arbitration Act and reaches a surprising conclusion:  Although these decisions have encouraged the “mass production of arbitration clauses” requiring hundreds of millions of consumers and employees to use arbitration to resolve disputes, these groups almost never do so.  In other words, Resnik finds that the practical effect of the Court’s arbitration jurisprudence has been to replace a system of public judicial dispute resolution with no dispute resolution at all.

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Wednesday round-up

By on Jul 22, 2015 at 9:28 am

Briefly:

  • At the Blog of Legal Times (subscription or registration required), Tony Mauro reports on a recent poll indicating that “[p]ublic support for life tenure for U.S. Supreme Court justices is decreasing, while the notion of allowing cameras in the court is more popular than ever.”
  • At Library of Law and Liberty, Mark Pulliam continues his series of posts on the road to Abood v. Detroit Board of Education – the decision that the petitioners in next Term’s Friedrichs v. California Teachers Association have asked the Court to overturn.
  • At Cato at Liberty, Roger Pilon discusses the Court’s decision in the same-sex marriage cases, “defending Kennedy’s conclusion inObergefell v. Hodges but taking exception to his reasoning.”

A friendly reminder:  We rely on our readers to send us links for the 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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Tuesday round-up

By on Jul 21, 2015 at 8:39 am

Briefly:

  • At Education Week’s The School Law Blog, Mark Walsh reports that,”[j]ust weeks after the U.S. Supreme Court said it would revisit the question of affirmative action in higher education, a new report sheds light on how widespread the use of race in admissions remains.”
  • Lawrence Hurley of Reuters discusses a recent poll indicating that “[m]ost Americans would support imposing a term limit” on Supreme Court Justices.
  • At Crime and Consequences, Kent Scheidegger discusses (and pushes back against) a recent article by Adam Liptak on summary dispositions at the Court this Term.
  • In The New York Times, Andrew Ross Sorkin discusses cases in which some Justices have owned stock in companies that have filed amicus briefs and the possibility that the stocks could be held in a blind trust owned by third parties.
  • AJIL Unbound, the online forum of the American Journal of International Law, is hosting a symposium on the Court’s decision in Zivotofsky v. Kerry, the Jerusalem passport case.
  • In a post at Balkinization, Marty Lederman looks at the impact of the Court’s 2014 decision in Burwell v. Hobby Lobby, including the petitions for certiorari that have been filed by non-profit religious organizations; he concludes that “Supreme Court review is now a distinct possibility (although hardly inevitable).”
  • With the Court having announced at the end of last month that it would hear oral arguments in Friedrichs v. California Teachers Association, in which it has been asked to overrule its decision in Abood v. Detroit Board of Education, Mark Pulliam has a post at Library of Law and Liberty in which he discusses the origins of Abood.
  • At The Legal Intelligencer (subscription or registration required), Charles Kelbley discusses the Court’s opinion in the same-sex marriage cases and contends that “a central part of Kennedy’s opinion did focus on several principles and traditions that demonstrate the reasons why marriage is a fundamental constitutional right and how those reasons apply with equal force to same-sex marriage.”
  • At The Blog of Legal Times (subscription or registration required), Tony Mauro reports on Justice Samuel Alito’s comments in a recent interview with Bill Kristol.
  • In an op-ed for The (Eugene, Oregon) Register-Guard, Hayden Rooke-Ley contends that both of the Court’s recent cases upholding the Affordable Care Act’s individual mandate and tax subsidies “are vintage Roberts: They strengthen the court’s institutional role, but are imbued with arguments that entrench Roberts’ conservative jurisprudence.”

A friendly reminder:  We rely on our readers to send us links for the 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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The mystery of Fisher II review

By on Jul 21, 2015 at 12:09 am

Analysis

The volatile constitutional issue of race as a factor in selecting the entering classes at public universities and colleges returns to the Supreme Court next Term, but it is far from clear at this point just why the Justices are stepping back into that enduring controversy, and where it will end up.  The Court has a wide range of options on how to decide a new case involving the University of Texas, and lawyers — perhaps necessarily doing some guesswork — may find it quite challenging to shape their written arguments to cover that range.

The Court, of course, never explains fully at the outset why it is taking on a case, although it sometimes rewrites the legal questions either to suit its own preference or to narrow the scope of what it plans to decide.  But, if it does not do that, the only specific clue of what is at stake is the wording of the questions that the lawyers lay before the Court and the arguments in their opening papers, and those may not be enough to solve the mystery.  That seems true of the Court’s review — for the second time in two years — of a claim that Abigail Noel Fisher was denied admission to the university in Austin seven years ago because she is white.

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Event announcement

By on Jul 20, 2015 at 10:16 am

On July 22 at 1 p.m., the State & Local Legal Center will host a webinar on the recently ended Term’s significant cases affecting state and local government.  The discussion, which offers free CLE, will feature John Bursch, Joe Palmore, and Tony Mauro.

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Monday round-up

By on Jul 20, 2015 at 7:51 am

Briefly:

  • At Conversations with Bill Kristol (video), Kristol interviews Justice Samuel Alito about everything from his path to the Court to same-sex marriage and Philadelphia baseball.
  • In The Weekly Standard, Dan McLaughlin suggests that, for “close watchers of the Court, another theme ran through this term: the breadth and depth of Justice Clarence Thomas’s institutional critique of the Court itself.”
  • In The New York Law Journal, Robert Schonfeld discusses the Court’s decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; he contends that the decision “is significant because it did lay down guidelines for what the court would deem to be a proper use of the ‘disparate impact’ theory.”
  • At Jost on Justice, Kenneth Jost argues that if Richard Glossip, the named petitioner in Glossip v. Gross, is executed in September, “the case will be one more example of a system that defies best efforts to be fair and just or even simply to make sense.”
  • At DRI Appellate Blog, Steven Klepper concludes that, “no matter where you fall on the liberal-conservative spectrum, state supreme court justices’ judgment . . . is like a better indicator than opinions by” federal appellate judges.
  • In the Supreme Court Brief (subscription required), Steffen Johnson looks at the Term’s “greatest hits” for business.
  • In an op-ed for the Supreme Court Brief (subscription required), Erwin Chemerinsky argues that, despite the popular characterization of the just-ended Term as “liberal,” “a closer examination of the cases shows a much more complicated story, including the liberal justices being in the majority in decisions that should be of great concern to progressives.”

A friendly reminder:  We rely on our readers to send us links for the 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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