Petition of the day

By on Jul 22, 2016 at 11:23 pm

The petition of the day is:

16-14

Issue: (1) What, if any, deference is due an agency’s interpretation when it predominately interprets terms of common law in which courts, not administrative agencies, have special competence; (2) whether the circuit court erred when it held, in contravention of this Court’s long-standing definition of “common carrier,” that pilots who use the Internet to communicate are “common carriers” when those pilots do not earn a commercial profit or indiscriminately offer to share their travel plans with the general public, thus warranting remand; and (3) whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

Shortly after Edward Sanford was confirmed as the Court’s seventy-second Justice in 1923, an Illinois newspaper observed that liberals were “quite as much pleased over” Sanford’s appointment as they were “distressed over that of Pierce Butler,” who had taken a seat on the Court less than a month before. “Liberals,” the paper continued, “in fact are claiming Judge Sanford as one of themselves just as they have claimed” Justices Oliver Wendell Holmes and Louis Brandeis.

More recent assessments of Sanford’s tenure have him “leaning to the right, but only slightly,” as Russell Galloway writes in a 1984 review of the Taft Court. And an article by Stephanie Slater, published this month by the Journal of Supreme Court History, reports that Sanford has “generally been thought of as a staunch conservative.” This shift in reputation and the lack of scholarly attention paid to Sanford compared with other Justices from his era make Slater’s article and a companion piece by John Scheb very timely for examining Sanford’s life and clarifying his contribution to the Court’s jurisprudence.

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Friday round-up

By on Jul 22, 2016 at 7:32 am

On Wednesday the U.S. Court of Appeals for the Fifth Circuit struck down a key provision of Texas’s voter ID law and sent the case back to the lower court, reducing the likelihood that the dispute will come to the U.S. Supreme Court soon.  Coverage comes from Lyle Denniston at his eponymous blog.  Rick Hasen has a “first take” at his Election Law Blog and more analysis at Slate, where he suggests that the ruling also contains “a road map for returning Texas’ voting rules to the supervision of the federal government.”  And in another post, Hasen compares the Texas decision to a challenge to North Carolina’s voter ID law, arguing that, “if plaintiffs lose on the voter ID issue in NC it will look just like the win in Texas: a strict law in place, with a workaround that may or may not work well on the ground.”      Continue reading »

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Thursday round-up

By on Jul 21, 2016 at 7:42 am

Yesterday the U.S. Court of Appeals for the Fifth Circuit issued its ruling in the challenge to Texas’s stringent voter ID law.  A divided en banc court struck down one key provision of the law and sent the case back to the lower court, decreasing the chances that the dispute will come immediately to the U.S. Supreme Court.  I covered the decision for this blog, with other coverage coming from Jon Herskovitz and Lawrence Hurley of Reuters and from Manny Fernandez and Erik Eckholm of The New York Times; commentary comes from Rick Hasen at his Election Law BlogContinue reading »

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Petition of the day

By on Jul 20, 2016 at 11:23 pm

The petition of the day is:

15-1387

Issue: (1) Whether respondent has Article III standing to challenge the Forest Service’s failure to reinitiate Section 7 of the Endangered Species Act (ESA) consultation on the Lynx Amendments, which were completed in 2007, after the Fish and Wildlife Service designated additional critical habitat for the lynx in 2009, when respondent cannot identify any member who has or will suffer a concrete injury as a result; (2) whether respondent’s challenge to the Forest Service’s programmatic amendments is ripe for review when respondent failed to challenge any site-specific project authorized under the amended plan provisions; and (3) whether Section 7(a)(2) of the ESA requires the Forest Service to reinitiate consultation on a completed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.

A challenge to a Texas voter identification law that some have described as the strictest in the nation now seems less likely to be headed immediately to the U.S. Supreme Court.  In a 203-page opinion that three dissenting judges characterized as “gravely fractured,” a federal appeals court today struck down one central provision of the law and sent the case back to a federal trial court for more proceedings.  The U.S. Court of Appeals for the Fifth Circuit instructed the lower court to fashion a remedy to address the problems faced by minority voters who have trouble obtaining the identification that they would otherwise need to vote in the November 2016 election.  But today’s decision was not an unqualified victory for the challengers, as the appeals court also reversed the lower court’s finding that the law was invalid because it was intended to discriminate against minority voters.  That question will now go back to the lower court for it to take another look. Continue reading »

Wednesday round-up

By on Jul 20, 2016 at 10:58 am

Yesterday marked 125 days since the nomination of Chief Judge Merrick Garland, the president’s nominee to fill the vacancy created by the death of Justice Antonin Scalia.  Lawrence Hurley of Reuters reports Garland’s achievement of the “unwanted milestone,” with more coverage from Alex Gangitano of Roll Call.  Alvero Huerta discusses the stalemate over Garland’s nomination and the Court’s four-to-four tie in the challenge to the Obama administration’s deferred-action policy in a post at Medium, arguing that the deadlock in the immigration case shows that “the political dog-and-pony show currently playing itself out in the Senate and being pushed by Republicans who will go to great lengths to stymie the president’s nominee has tied the hands of the Supreme Court.”  Continue reading »

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Tuesday round-up

By on Jul 19, 2016 at 9:13 am

Yesterday the Department of Justice asked the Supreme Court to rehear the challenge to the Obama administration’s deferred-action policy, which would allow some undocumented immigrants to apply to remain in the country and work here legally.  Last month the Justices divided four to four on the case, leaving in place a ruling by a federal appeals court that blocked the government from implementing the policy; in yesterday’s filing, the federal government asked the Court to reconsider the case when it has all nine Justices.  I covered the developments for this blog, with other coverage coming from Lyle Denniston at his eponymous blog, Pete Williams of NBC News, and Robert Barnes of The Washington Post. Continue reading »

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Petition of the day

By on Jul 18, 2016 at 11:23 pm

The petition of the day is:

15-1525

Issue: Whether, where purchasers allege that a manufacturer misrepresented a drug’s safety to prescribing doctors to increase sales, the presence of the doctors breaks the causal chain—for purposes of the Racketeering Influenced and Corrupt Organizations Act causation—between the misrepresentations and the purchasers’ economic injuries.

Twenty-five days ago, the eight Justices of the Supreme Court issued a one-sentence order which indicated that they were deadlocked four to four on the validity of the Obama administration’s deferred-action policy, which would allow undocumented immigrants who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the country without fear of deportation and work here legally.  Because two lower courts had blocked the administration from implementing the policy before it could go into effect, it looked like the ruling could be the end of the administration’s immediate attempt to revive the policy prior to the end of all the litigation.  But today the Obama administration asked the Court to grant rehearing to review the case again (which would require the votes of five Justices), when it has all nine Justices – even if it isn’t clear when that will be.  Continue reading »

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