Briefly:

• In her eponymous blog, Amy Howe reports that the Virginia transgender student who identifies as a boy and wants to use the boys’ bathroom at his high school filed a brief last week opposing the school board’s cert. petition in the case, Gloucester County School Board v. G.G.; she notes that the brief was filed well in advance of the deadline and that the “early filing means that the Justices will consider the case at their private conference on October 14.”
• At Reuters, Lawrence Hurley reports that the “[s]horthanded and ideologically divided” Court “has yet to take up any cases on politically sensitive social issues in its new term starting in October, instead showing a keen interest in more technical cases of importance to business such as disputes over intellectual property.”
• Coverage of the recent reenactment in Philadelphia of a 1794 Supreme Court case, Georgia v. Brailsford, over which three Supreme Court Justices presided, comes from Jess Bravin of The Wall Street Journal, who reports that the case featured “issues still debated today: the relationship between the state and federal governments, the significance of international law, and the powers of the jury.”

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The petition of the day is:

Issue: Whether, for purposes of the collateral estoppel component of the double jeopardy clause, the ordinary requirement for collateral estoppel that the prior determination was necessary to the ultimate outcome—which is intended to ensure that a determination received careful attention, and to deny preclusive effect where the outcome deprived a party of the opportunity for appellate review it otherwise would have had—applies to a jury’s special findings in a capital case that the prosecution failed to prove certain alleged aggravating factors.

On September 26 at 3:30 p.m. (PST), UC Hastings College of the Law will host a Supreme Court review and preview. Speakers will include Judge Carlos Bea, Judge Beth Labson Freeman, Radhika Rao, and Rory Little. More information about this event, which will be held at the Louis Mayer Auditorium in San Francisco, is available here.

Do the Supreme Court’s constitutional cases turn on questions of law or fact? In Supreme Facts: The Prevalence and Justification of Social Facts in Landmark Decisions of the Supreme Court, political scientists Morgan Marietta and Tyler Farley examine that question. Marietta and Farley studied a hundred of the most important Supreme Court constitutional cases and discovered that 59 of the decisions turn in part on the Court’s view of “social facts.” The authors define “social facts” (also known as “legislative facts”) as generalized propositions about how the world works that are not specific to a particular case, such as whether sexual orientation is innate, or racial minorities continue to face obstacles to voting in southern states, or abortions are psychologically harmful to the women who get them. Their research suggests that such factual questions influence the Court as much as or more than the text of the Constitution and theories of constitutional interpretation, and yet the Court’s method of deciding these questions has received far less scrutiny.

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Yesterday, Chief Justice John Roberts, Justice Stephen Breyer, and Justice Samuel Alito, along with several jurists from the United Kingdom visiting the United States as part of a legal exchange program, participated in a reenactment of a 1794 Supreme Court case, Georgia v. Brailsford, in the same Philadelphia courtroom in which the early Court once met. Coverage of the event comes from this blog’s Mark Walsh. Additional coverage comes from Tony Mauro at Law.com (subscription or registration required), who describes the case as a “quirky dispute that has been billed as the only reported Supreme Court case in which the court itself held a jury trial,” and from Richard Wolf in USA Today, who observes that the three Justices presiding over a case that was originally heard by four members of the 1794 Court “added a modern touch” to the proceedings: “They were a justice short.”

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PHILADELPHIA, September 19, 1794 — Your correspondent has traveled from the budding City of Washington in the Territory of Columbia to our nation’s capital here to cover a rare jury trial in the Supreme Court of the United States.

I ride the express, eight-horse-drawn carriage rather than the slower, four-horsepower “regional” carriage, which stops in all the smaller towns along the route. Although the faster carriage costs a few more shillings, I will justify it on my expense account by noting that the faster one gets me into Philadelphia in time to have the buckles on my shoes shined and my wig re-powdered.

I also buy a newspaper, Dunlap & Claypoole’s American Daily Advertiser, which has news about the Court convening, the French Revolution, ships preparing to set sail, and something that seems to hark from a different era, that “the Phillies are out of the pennant race.”

After an initial, unremarkable term in New York City, the Supreme Court has convened since 1791 at the City Hall of Philadelphia (which I predict will one day be called Old City Hall), next door to historic Independence Hall.

The case for argument today is Georgia v. Brailsford, a knotty dispute over an unpaid debt incurred before the Revolutionary War that implicates states’ rights, international treaties, fair credit, and the reputation of the still-new Supreme Court.

“In 1794, this case was a very big deal,” says Chief Justice John Roberts.

To switch to a present-day perspective, Chief Justice Roberts, along with Justices Stephen Breyer and Samuel Alito, are here to preside over the reenactment of the case, which in 1794 was argued simultaneously both to the Court and a special jury. This reenactment is occurring in the very courtroom the Supreme Court used in Old City Hall from 1791 to 1800.

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The petition of the day is:

Issue: Whether the Ninth Circuit erred in concluding that the affirmation of good faith belief that a given use of material use is not authorized “by the copyright owner, its agent, or the law,” required under Section 512(c) of the Digital Millennium Copyright Act (“DMCA”), may be purely subjective and, therefore, that an unreasonable belief—such as a belief formed without consideration of the statutory fair use factors—will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA.

In June the Court struck down two provisions in a Texas law regulating abortions in that state. One required physicians who perform abortions to have admitting privileges at hospitals less than thirty miles from the abortion clinic, while the other required clinics to have facilities comparable to ambulatory surgical centers.

More than two dozen states have requirements that are at least somewhat similar; some of those requirements either are or recently were also the subject of legal challenges. Most notably, just one day after its ruling in the Texas case, the Court rejected requests by officials in Wisconsin and Mississippi to review lower-court decisions blocking the enforcement of admitting privileges requirements in those states.

Using resources provided by the Center for Reproductive Rights and the Guttmacher Institute, we identified four basic categories of state requirements regarding admitting privileges.

(Click chart to enlarge)

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On October 13 at 12 p.m., the State & Local Legal Center will host a webinar on cases for the next Term that involve state and local government. Speakers will include Misha Tseytlin, Deepak Gupta, and this blog’s Amy Howe. More information is available on the center’s website.

The intersection between the Supreme Court and the upcoming elections continues to take center stage. In The Hill, Alexander Bolton reports that if Hillary Clinton is elected in November, her choice to fill the vacancy on the Court could affect the political fate of congressional Democrats, noting that “Democrats facing tough races in the next cycle don’t want Clinton” “to spend her political capital on a messy fight over the court — and the hot-button social issues under its jurisdiction — during her first 100 days in office.” Chris Geidner at Buzzfeed notes that the Court has fallen “to the wayside” as an election issue, and outlines occasions over the next few months that might bring it back into the spotlight.

Coverage of the Senate’s refusal to act on the nomination of Judge Merrick Garland comes from Lydia Wheeler in The Hill, who reports that “Senate Democrats are blasting their Republican colleagues for not only blocking the confirmation of Supreme Court nominee Merrick Garland, but also 53 other judges in the lower courts.” Ken Jost at Jost on Justice also weighs in on the Senate’s refusal to act on judicial nominations, noting that “Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to ‘do its job,’” but that to the detriment of “the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.” Additional commentary on the confirmation issue comes from LeRoy Goldman at BlueRidgeNow.com, who argues that if Democrats regain control of the Senate in November under the leadership of Senator Chuck Schumer, they may employ the “nuclear option” to muscle though Supreme Court nominees should Hillary Clinton be elected; he argues that “Hillary Clinton will have everything to gain and nothing to lose if Schumer acquiesces to the pressure and the temptation to further transmogrify long-standing Senate tradition and procedure by pulling the nuclear trigger again.”

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