Editor's Note :

Editor's Note :

The court will be issuing opinions on Friday at 10 a.m. We will begin live-blogging at 9:30 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

Acting Solicitor General Jeffrey Wall was at the Supreme Court yesterday for the formal investiture of Justice Neil Gorsuch, but that was only part of Wall’s busy day. Shortly after the investiture ceremony, the Trump administration filed the next installment in the series of briefs supporting its request to allow President Donald Trump’s March 6 executive order, which bans entry into the United States by residents of six Muslim-majority countries, to go into effect until the justices can review the lower courts’ rulings blocking the implementation of the order. The federal government urged the court to reinstate the order, warning that leaving the freeze of the so-called “travel ban” in place “will continue to cause irreparable harm to the government and the public” by “preventing the President from effectuating his national-security judgment.”

In its original round of filings, submitted on June 1, the federal government asked the Supreme Court to step into two different challenges to the travel ban. The first challenge came to the justices from the U.S. Court of Appeals for the 4th Circuit, which had upheld a Maryland judge’s order blocking implementation of the ban. And the second came to the justices via Hawaii, where another federal judge had put the ban on hold. But the U.S. Court of Appeals for the 9th Circuit had not yet weighed in on the merits of the Hawaii judge’s ruling when the government first went to the Supreme Court earlier this month. The 9th Circuit’s decision came last week, prompting the government to seek (and the Supreme Court to grant) a new round of briefing.

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Friday round-up

By on Jun 16, 2017 at 7:38 am

Yesterday marked the formal investiture of Justice Neil Gorsuch at the Supreme Court. Amy Howe and Mark Walsh cover the event for this blog. At USA Today, Richard Wolf reports that “the ritual was but a speed bump in a high court career that’s already off to a fast start.” In The New York Times, Adam Liptak reports that “President Trump, who is awaiting word from the Supreme Court on the fate of his travel ban, paid his first visit to the court” for the ceremony. Additional coverage comes from Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Lawrence Hurley at Reuters and Robert Barnes in The Washington Post.

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Petition of the day

By on Jun 15, 2017 at 10:30 pm

The petition of the day is:

16-1206

Issues: (1) Whether a district court, consistent with Article III of the United States Constitution, can exercise in rem jurisdiction over foreign property that is within the exclusive custody and control of foreign courts; (2) whether a district court, consistent with 28 U.S.C. § 2466 and due process, can resolve factual disputes and make adverse credibility determinations at the pleading stage in finding that a claimant is a disentitled fugitive; and (3) whether a foreign national residing abroad should be deemed to have the intent “to avoid criminal prosecution” and be disentitled as a fugitive, consistent with 28 U.S.C. § 2466 and due process, merely because avoiding criminal prosecution is a reason (not the sole or primary reason) why the foreign national has not entered the United States while aware that he faces criminal prosecution here.

 
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Justice Neil Gorsuch was confirmed to the Supreme Court over two months ago, and he has already written his first opinion, on Monday of this week. But getting a bunch of important people in the same place at the same time can be tricky, which is at least one of the reasons why Gorsuch’s formal investiture ceremony didn’t take place until today.

For security and crowd-control purposes, reporters are seated 45 minutes before the investiture is scheduled to begin. That leaves plenty of time for the press corps’ favorite pastime in the lead-up to a high-profile argument or ceremony: people watching. It’s a group effort, particularly when we are cautioned against standing up in our seats. There is a long list of prominent Republicans in the audience, including former attorneys general Edwin Meese (under President Ronald Reagan) and John Ashcroft, Alberto Gonzales and Michael Mukasey (under President George W. Bush).

Justice Gorsuch seated in John Marshall’s chair at his investiture attended by the President and First Lady; Deputy Attorney General Rosenstein at lectern with scroll (Art Lien)

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Thursday round-up

By on Jun 15, 2017 at 7:31 am

At his eponymous blog, Lyle Denniston reports that “President Trump moved on Wednesday to keep his restrictions on immigration in operation, if the Supreme Court now allows government officials to start enforcing those limits,” by “extend[ing] the planned expiration dates for the restrictions” in a new presidential order. At Take Care, Leah Litman assesses the implications of the extension, arguing that “the President has now formally severed the link between the government’s review of its internal visa procedures and the entry ban itself,” and that “[a]s a result, the government has undermined its own oft-repeated rationale for the order: imposing a temporary bar on entry while it studied the issue and considered more comprehensive vetting procedures” and has “further weakened the claim that its entry ban is, or ever was, enacted for national security purposes.” At the Lock Law Blog, Ryan Lockman adds that the “DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited briefing, and then asking in mid-June for a two week delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.” At The Washington Post’s Volokh Conspiracy blog, Sam Bray examines the immigration-law justifications for the national injunctions issued in the entry-ban cases, concluding that “no one has shown any compelling reason to think the naturalization clause authorizes national injunctions.”

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Petition of the day

By on Jun 14, 2017 at 10:25 pm

The petition of the day is:

16-8327

Issue: Whether a district court may order an in personam forfeiture money judgment against an impecunious criminal defendant in the absence of a statute expressly authorizing such a form of punishment.

 
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In Maslenjak v. United States, the Supreme Court will decide whether the government can revoke naturalization based on immaterial false statements made during the naturalization process. Although the issue is primarily one of statutory interpretation, major constitutional questions lurk beneath the surface. As Patrick Weil explains in his fascinating book, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic,” 50 years ago the Supreme Court put a stop to the government’s once-common practice of denaturalization, and in the process “redefin[ed] the country’s understanding of sovereignty and citizenship.” The court’s decision in Maslenjak is likely to be informed by this legal and historical precedent.

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Relist Watch

By on Jun 14, 2017 at 12:04 pm

John Elwood reviews Monday’s relists

After spending the better part of two terms in a holding pattern because they were down a justice and at risk of 4-4 splits, the court is back at full strength and next term is shaping up nicely. We’re not quite back in every-term-a-blockbuster mode, but October Term 2017 is looking not too shabby. Last week’s grant in the cell-site data case Carpenter v. United States, 16-402, got the ball rolling. Then there was Monday’s grant in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712, which is, to use a legal term of art, a Big Hairy Deal for the patent bar. Oil States involves the constitutionality of the administrative mechanism Congress created for revisiting the validity of issued patents, which has been hotly debated by bigger nerds than me for quite some time. With two cases involving the constitutional validity of partisan gerrymandering as serious prospects at tomorrow’s conference, next term is off to a decent start.

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In its conference of June 15, 2017, the court will consider petitions involving issues such as whether private parties can sue to enforce 52 U.S.C. § 10101; whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding; and whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

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Wednesday round-up

By on Jun 14, 2017 at 7:18 am

Yesterday, in the wake of Monday’s ruling by the U.S. Court of Appeals for the 9th Circuit rejecting the administration’s bid to reinstate the president’s March 6 executive order temporarily restricting entry into the U.S. by travelers from six Muslim-majority countries and suspending the admission of refugees, the court ordered a new round of briefing on the government’s request for a stay of the ruling; briefing will be completed by noon on June 21, the day before the court meets for its final private conference of the term. Amy Howe covers these developments for this blog, as does Lyle Denniston at his eponymous blog, who notes that “if the court has any thought about ruling — before the summer recess — on any of the issues regarding the executive order, it would have to act with unusual dispatch.” At Lock Law Blog, Ryan Lockman discusses the 9th Circuit’s ruling, noting that it “was the first appeals court decision on either travel ban to address only the statutory arguments.”

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