Friday round-up

By on Jul 8, 2016 at 7:59 am

At the Brennan Center, Andrew Cohen looks at the just-ended Term and argues that what it “really represents, apart from the sum of its decisions and orders, is a hinge in the Court’s history.”  At Empirical SCOTUS, Adam Feldman continues his review of the Term, this time focusing on how law firms fared at the Court.


  • Fresh Air’s Terry Gross interviews Linda Greenhouse, the author (with Michael Graetz) of a new book on the Burger Court.
  • Writing for Greenwire, Robin Bravender reports that the “Pacific Legal Foundation, a conservative nonprofit that’s on a roll with Supreme Court victories, has hired a new president and CEO.”
  • Headnotes, the online forum of The University of Minnesota Law Review, hosts a symposium on Justice Antonin Scalia’s impact on the Court.
  • At Hosts of Error, Will Rosenzweig looks back at last week’s decision striking down two provisions in a Texas law regulating abortion and in particular the principal dissent’s focus on procedural, rather than substantive, issues; he suggests that such a focus “is an acknowledgment that the tide is turning on public opinion and the battle must be fought on different ground.”
  • In The Economist, Steven Mazie concludes that the Court’s ruling in the case of former Virginia governor Bob McDonnell “is a relief not only to Mr McDonnell and his wife but to untold politicians across the country who may have used their offices to pursue questionable deals and exchanges.”
  • In another column for The Economist, Mazie analyzes the Court’s denial of review in the challenge to a Washington state regulation that requires pharmacies to provide drugs and devices to patients even if the owners object to doing so; he contends that the “fate of the case sheds a clear light on the transformed political landscape of religious liberty in America.”
  • At his Election Law Blog, Rick Hasen considers how an attack on “super PACs” by a “liberal dream team” might fare at a post-Scalia Court.

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Thursday round-up

By on Jul 7, 2016 at 6:18 am

Coverage and commentary related to last week’s decision striking down two provisions in a Texas law regulating abortion comes from Oyez, which adds analysis of the decision to its Body Politic site.  At his eponymous blog, Ed Mannino suggests that “particular emphasis in future cases will be placed upon the factual findings relating to burdens and benefits made by the trial court. Thus, it is unlikely that the Supreme Court will review more abortion cases in the near future, but will, in all probability, simply vacate and remand other cases for reconsideration.”  And at Vox, Caleb Lewis concludes that the ruling is “a pretty significant victory for pro-choice advocates . . . in the immediate sense,” but he adds that the “long-term implications of the decision are less clear.” Continue reading »

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Petition of the day

By on Jul 6, 2016 at 11:58 pm

The petition of the day is:


Issue: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.


For the past three years, Ian Gershengorn has been in the Office of the Solicitor General working as Don Verrilli’s principal deputy. Now, he is leading the office himself.

Gershengorn took over as Acting Solicitor General on June 25. In that capacity, he will represent the United States before the Supreme Court for the next few months.

“My approach is more continuity than anything else,” says Gershengorn. “Don ran the office in a way that I think was really in the best traditions of the office and most conducive for putting forth the effective arguments in Court.”

As the Principal Deputy Solicitor General, Gershengorn made ten appearances at the Court, with the Justices siding with his views more often than not.

During the Term that just ended, Gershengorn argued in support of Texas in Evenwel v. Abbott, defending the use of total population as a measure for carving out state legislative districts. Last year, Gershengorn successfully argued on behalf of the Equal Employment Opportunity Commission, challenging Abercrombie & Fitch’s rejection of a Muslim woman who applied for a job while wearing a headscarf. Shortly after arriving in the Office of the Solicitor General, he also participated in a trio of First Amendment cases. In Town of Greece v. Galloway, the Court agreed with the town and Gershengorn that opening prayers at legislative meetings do not impermissibly favor religion, so long as the prayers are not discriminatory or coercive. His view also prevailed in Lane v. Franks, a public employee speech case. However, he was on the losing side in McCullen v. Coakley, in which the Court struck down a buffer zone restricting protests around abortion clinics.

Continue reading »


Wednesday round-up

By on Jul 6, 2016 at 5:03 am

In The New York Times, Adam Liptak reviews Justice Sonia Sotomayor’s dissents this Term, describing them as “a remarkable body of work from an increasingly skeptical student of the criminal justice system.”  At Reason, Damon Root contends that Sotomayor “is fast becoming the Supreme Court’s biggest defender of the Fourth Amendment,” while at Legal Aggregate Ronald Tyler reports that his “own reaction” to the Court’s ruling in the Fourth Amendment case Utah v. Strieff “is dismay over the majority decision and strong agreement with Justice Sotomayor’s powerful dissent.”  Continue reading »

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Maeva Marcus has taken over as the new general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, the Library of Congress and the Permanent Committee of the Oliver Wendell Holmes Devise recently announced. In this role, she will focus on completing a vision for a history of the Supreme Court that in some respects goes back to 1935, when retired Justice Oliver Wendell Holmes died two days short of his ninety-fourth birthday. Holmes bequeathed some funds to friends and family and left his papers to Harvard Law School, but he also donated $263,000 (over $3.7 million in today’s dollars) to the federal treasury – at that time, the largest such gift ever.

Holmes’s gift reflected his belief in in public service and the general goodness of the state. In an 1884 speech, for example, Holmes had encouraged others “to recall what our country has done for each of us, and to ask ourselves what we can do for our country in return.”

Continue reading »

Tuesday round-up

By on Jul 5, 2016 at 6:00 am

Coverage and commentary related to the end of the Court’s Term, and looking back at the Term as a whole, abound.  Bill Mears of Fox News focuses on the role of Justice Anthony Kennedy, observing that the Court’s “swing vote” is “quietly flexing his judicial power on a dizzying mix of hot-button cases,” while Ron Elving and Nadia Farjood of NPR have some “takeaways” from the Term and Ballotpedia breaks down the Term’s statistics.

At Jost on Justice, Kenneth Jost also looks at Justice Anthony Kennedy’s role, in particular in the challenges to Texas’s abortion regulations and the University of Texas at Austin’s consideration of race in its undergraduate admissions process; he emphasizes that Kennedy “voted . . . after reviewing the facts and the law, not on the basis of preconvictions.” At Empirical SCOTUS, Adam Feldman looks at “the success of attorneys throughout the Term,” while in the ABA Journal Erwin Chemerinsky contends that it “is hard to remember a Supreme Court term where the decisions did less to change the law.”  At Think Progress, Ian Millhiser focuses on Justice Sonia Sotomayor; he suggests that, although Sotomayor has assumed the late Thurgood Marshall’s “mantle as the Court’s racial truth-teller, her eventual fate as his heir is very much outside of her hands. Whether she’ll be able to conjure the better world Marshall sought will depend on the next president.” Continue reading »

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Petition of the day

By on Jul 4, 2016 at 11:16 pm

The petition of the day is:


Issue: Whether an order that affects the judgment under which a state prisoner is held in custody, but does not vacate that judgment, constitutes a new judgment that removes a second in time petition for writ of habeas corpus from the Antiterrorism and Effective Death Penalty Act’s bar on second or successive petitions.


This week at the Court

By on Jul 3, 2016 at 12:00 pm

The Court is now in its summer recess. Its next Conference is scheduled for Monday, September 26.


Petitions of the day

By on Jul 1, 2016 at 11:14 pm

The petitions of the day are:


Issue: Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).


Issue: Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate only economic conduct (as the Second and Fifth Circuits have held).


Issue: Whether Florida's nearly thirty-year-old Surcharge Statute is a facially unconstitutional speech restriction, as the Eleventh Circuit held, or whether such a law regulates only conduct and does not even implicate the First Amendment, as the Second and Fifth Circuits have held.

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