Friday round-up

By on Jul 14, 2017 at 7:27 am

At his eponymous blog, Lyle Denniston reports that a federal judge in Hawaii yesterday held that “the Administration is interpreting too narrowly the Supreme Court’s June 26 decision on who among foreign travelers and refugees are entitled to enter the country under President Trump’s March 6 executive order.” In The Washington Post, Samantha Schmidt reports that the judge ruled that “the federal government’s list of family relatives eligible to bypass the travel ban should be expanded to include grandparents, grandchildren, uncles, aunts and other relatives” and “ordered exemptions for refugees who have been given formal assurance from agencies placing them in the United States.” Additional coverage comes from Brent Kendall in The Wall Street Journal.

Briefly:

  • At The Hill, Lydia Wheeler reports that next term’s partisan-gerrymandering case, Gill v. Whitford, “could jeopardize voter maps across the country and help Democrats regain control of Congress.”

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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Christopher J. Hajec is the director of litigation for the Immigration Reform Law Institute. He filed an amicus brief in support of the government’s cert petition in Trump v. IRAP.

In their clever way, the plaintiffs in the travel cases (now the respondents before the U.S. Supreme Court) have put before the courts a very interesting question: whether considering religion in the admission or exclusion of aliens violates the establishment clause of the First Amendment, which forbids “law[s] respecting an establishment of religion.” Of course, not even these plaintiffs contend that aliens with no connection to this country have rights under that clause that directly shield their religious affiliation from consideration. Rather, the plaintiffs contend that their own rights, as Americans who are Muslim, are violated by President Donald Trump’s order suspending entry into the country by nationals of six majority-Muslim countries. This order, they claim, is based on religious animus and causes them to feel excluded from the American community because of their religion.

The U.S. Court of Appeals for the 4th Circuit agreed with these plaintiffs. It held that the national-security justification the president gave for his order was but a pretext meant to hide what the order truly was: a version of the “Muslim ban” (actually, a pause in Muslim immigration) Trump had called for during the campaign. As a de facto Muslim ban, the court of appeals held, the order was based on religious animus, and (likely) violated the establishment clause.

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Petitions of the day

By on Jul 13, 2017 at 10:56 am

The petitions of the day are:

16-1373

Issues: (1) Whether a twenty-five month delay, during which the government negligently forgot about the defendant and lost important evidence, gives rise to a presumption of prejudice under Doggett v. United States; and (2) whether, to establish actual prejudice, a defendant must merely show that his defense was impaired as a result of the delay (as the Supreme Court, along with the U.S. Court of Appeals for the 9th, 10th, and 11th Circuits have held), or whether he must effectively demonstrate a likelihood that the outcome at trial would have been different but for the delay (as the U.S. Court of Appeals for the 5th, 6th, and 7th Circuits have held).

16-1400

Issues: (1) Whether the Uniformed Services Employment and Reemployment Rights Act specifically provides authority to the Merit Systems Protection Board to inquire as to the existence of a discriminatory pretext in the revocation of an employee’s security clearance; (2) whether, where the employee alleges the revocation of the security clearance is for a discriminatory pretext, the inquiry as to the existence of this discriminatory pretext improperly intrudes upon the “merits” of the Executive’s security clearance determination; and (3) whether the Merit Systems Protection Board can then provide a remedy under the Uniformed Services Employment and Reemployment Rights Act to an employee whose security clearance was revoked in violation of the Act.

Thursday round-up

By on Jul 13, 2017 at 7:09 am

Briefly:

  • At Empirical SCOTUS, Adam Feldman analyzes the citations to Supreme Court cases in the justices’ signed majority opinions last term, noting, among other things, that “three justices – Justices Kagan, Breyer, and Alito — cited Justice Scalia’s opinions more than those from any other justice including themselves.”
  • At The Huffington Post, Elliot Mincberg weighs in on the Supreme Court debut of Justice Neil Gorsuch, maintaining that “[o]n two issues in particular, despite his defenders’ claims during his confirmation hearings, Gorsuch has already become one of the most far-right justices on the Court: deference to presidential authority, and money in politics and elections.”
  • At his eponymous blog, Lyle Denniston reports that the plaintiffs challenging the administration’s travel ban submitted their final brief last night in Hawaii district court in support of their claim that “the Supreme Court’s June 26 ruling on enforcement of President Trump’s immigration executive order permits the entry of more foreign nationals and refugees than the Administration is now allowing.”

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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Steve Vladeck is a professor of law at the University of Texas School of Law.

In her contribution to this symposium, Leah Litman writes that “it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits [of the travel ban] . . . because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision.” Whoever else claims victory in that scenario (hint: everyone), it seems to me that the real winner will be Acting Solicitor General Jeffrey Wall — who, in retrospect, may have understood how to maximize the government’s chances before the Supreme Court better than anyone else (including, perhaps, the justices themselves).

I

I’ve written (well, tweeted) before about some of the procedural quirks in exactly how the government brought the travel-ban litigation to the Supreme Court. Three, in particular, stand out:

First, although the U.S. Court of Appeals for the 4th Circuit issued its 10-3 en banc decision affirming a nationwide injunction of the key provision of the travel ban on Thursday, May 25, the government waited a full week before applying to Chief Justice John Roberts for a stay of that decision (pending the Supreme Court’s disposition of the government’s contemporaneous cert petition). That may not sound like a lot, especially since half of that week was Memorial Day weekend, but both legally and optically, any delay could have been seen as undermining the argument for such emergency relief — which was itself predicated on the claim that the Maryland and Hawaii injunctions were causing irreparable harm to the government every moment that they remained in force. Indeed, let’s not forget that the government could have asked the Supreme Court to step in two months earlier, had it sought certiorari before judgment in the 4th Circuit.

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Petitions of the day

By on Jul 12, 2017 at 10:52 am

The petitions of the day are:

16-1348

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

16-1363

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the author of “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

In Trump v. International Refugee Assistance Project, the Supreme Court stayed, in part, the judgments of the U.S. Courts of Appeals for the 4th and 9th Circuits. Though the per curiam decision quite deliberately avoided any discussion of the merits, a careful study of how its equitable analysis treated the lower-court decisions provides some hints to how the justices ultimately may rule (assuming the case is not mooted come October).

The Supreme Court announced that its equitable analysis was based on the four-factor test articulated in 2009 in Nken v. Holder: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

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Wednesday round-up

By on Jul 12, 2017 at 7:14 am

In The Economist, Steven Mazie reports that “one salvo” in the Democrats’ battle “to stanch the huge redistricting advantage Republicans grabbed after the 2010 census” “is coming to the Supreme Court when the justices reconvene in the autumn: Gill v Whitford, a case challenging Wisconsin’s electoral maps.” At Vox, Nicholas Stephanopolous explains how the challengers in Whitford have used “a quantitative measure of gerrymandering — the efficiency gap — … to analyze the Wisconsin plan in new and powerful ways.”

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John G. Malcolm is the Vice President of the Institute for Constitutional Government at The Heritage Foundation.

On the last day of its term, the U.S. Supreme Court agreed to hear Trump v. International Refugee Assistance Project shortly after it reconvenes on Oct. 2, 2017. The case arrived at the court after the government appealed adverse decisions by the U.S. Courts of Appeals for the 4th and 9th Circuits against the so-called travel ban. The cases have been consolidated and will therefore be considered together in the fall.

In what has been characterized – correctly in my view – as a “win” for the president and a rebuke to judicial overreaching by the lower courts, the court unanimously lifted most of the nationwide injunctions that had been entered by the lower courts, allowing the bulk of the president’s “travel ban” to go into effect pending a decision on the merits by the Supreme Court.

Justice Clarence Thomas wrote a brief partial dissent, joined by Justices Samuel Alito and Neil Gorsuch. They argued that the lower-court injunctions should have been lifted in their entirety because the government “has made a strong showing that it is likely to succeed on the merits” and the “failure to stay the injunctions will cause irreparable harm by interfering with its compelling need to provide for the Nation’s security.”

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Term round-ups

By on Jul 11, 2017 at 11:56 am

MoloLamken has compiled its annual “Supreme Court Business Briefing,” concluding that the Supreme Court during the October Term 2016 “spent most of the year taking an incremental approach, with few decisions that fundamentally changed the business landscape.”

Sullivan & Cromwell LLP has published its own “Supreme Court Business Review,” providing concise summaries of key cases in the commercial sphere.

We invite you to alert us (feedback@scotusblog.com) to any other reviews of the Supreme Court term.

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