Editor's Note :

Editor's Note :

There is a possibility of opinions on Tuesday, April 25. We will begin live-blogging at this link at 9:45 a.m.
On Tuesday the court hears oral argument in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County. Ronald Mann has our preview.
On Tuesday the court also hears oral argument in BNSF Railway Co. v. Tyrrell. Amy Howe has our preview.

Justice Sonia Sotomayor mingled with the crowd and dispensed advice to Stanford University students on March 10. “Figure out first how to be a generally informed citizen before specializing in anything else,” Sotomayor told them. “It might lead you to find an interest you can’t imagine. It will make you good company for others. If you tell interesting stories about interesting things, people will gravitate to you.” At the end of the talk, Sotomayor received a T-shirt bearing the words “Fear The Nerds” on the front and “#NerdUp” on the back. “I grew up being a nerd. Take pride in being nerds,” she remarked. Coverage of the event comes from Mercury News and Stanford University News. A brief video clip is available on abc7news’ website. C-SPAN will air the full program at 8 p.m. EDT today.

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Next week the justices are scheduled to hear oral argument in Trinity Lutheran Church of Columbia v. Comer, in which a Missouri church is challenging the state’s denial of its application for a grant to resurface the playground used by its daycare center. In rejecting the church’s application, the state relied on a provision in its constitution that bars state funds from going to churches. Trinity Lutheran argues that its exclusion from the playground program violates the Constitution. (A more extensive preview of the case can be found here.)

The lower courts ruled for the state, and in January 2016 the Supreme Court agreed to review the dispute. However, the justices put off scheduling the case for oral argument for over a year – perhaps (although there is no way to know) to allow a nine-justice court to hear the case. Justice Neil Gorsuch will be on the bench when the justices return from their recess next week, but a recent announcement by the state casts some doubt on whether the justices will actually decide the case on the merits. Yesterday Missouri Governor Eric Greitens – who took office earlier this year – announced that the state had changed the policy at issue in this case to allow the state’s Department of Natural Resources to give grants to religious groups to fund not only recycled playground surfaces but also school field trips to state parks and programs to promote recycling and erosion control.

A press release issued by the governor’s office suggested that the decision would not affect Trinity Lutheran’s case, because the state had already made the decision to deny the church funding. However, interest groups opposing the church have countered that the governor’s decision has rendered the church’s case moot, because Trinity Lutheran can now apply for and receive funding for the playground program. The justices, of course, will ultimately decide whether the case can go on, and they are likely to spend at least part of next week’s oral argument exploring that question.

[UPDATE: This afternoon the court instructed the two sides to “submit their views on whether this case is affected by the press release relating to access to Missouri grant programs issued by Governor Greitens” yesterday. The letter briefs requested by the court are due at noon on Tuesday, April 18 – less than 24 hours before the court is scheduled to hear oral argument in the case.]

Friday round-up

By on Apr 14, 2017 at 7:02 am

At USA Today, Richard Wolf reports on the traditions that govern the life of the most junior justice, noting that Justice Neil Gorsuch will likely be “assigned to write mostly unanimous opinions in less-than-scintillating cases.” In Sports Illustrated, Michael McCann looks at how Gorsuch’s jurisprudence suggests he would rule in cases involving “the legality of NCAA amateurism,” concluding that although “Gorsuch’s views on amateurism are not certain, overall, they probably favor the NCAA.”

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Petition of the day

By on Apr 13, 2017 at 11:24 pm

The petition of the day is:

16-967

Issues: (1) Whether 42 U.S.C. 405(h), the provision of the Medicare Act that provides that “[n]o action against the United States, the [Secretary of Health and Human Services], or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim [in bankruptcy] arising under this subchapter[,]” bars a district court from exercising jurisdiction over claims arising under the Medicare Act; and (2) whether 42 U.S.C. § 405(h) requires a debtor to exhaust administrative remedies prior to pursuing the relief available to debtors under the Bankruptcy Code.

Event announcement

By on Apr 13, 2017 at 4:29 pm

On April 18 at 12 p.m., the Heritage Foundation will host a panel discussion previewing the next day’s oral argument in Trinity Lutheran Church of Columbia, Inc. v. Comer. Speakers will include Jordan Lorence, Hannah Smith and Walter Weber; Elizabeth Slattery will host. More information about this event, which will be held at the foundation’s Allison Auditorium in Washington, is available on its website.

 
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The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. Dorsen’sThe Unexpected Scalia: A Conservative Justice’s Liberal Opinions” (Cambridge University Press, 2017, pp. 375).

After graduating from Harvard Law School, Dorsen spent five years as an assistant United States attorney in the Southern District of New York in the criminal division under Robert M. Morgenthau; for four years he served as the deputy or first deputy commissioner in the Department of Investigation in the administration of Mayor John V. Lindsay of New York City; and for two years he served as assistant chief counsel of the Senate Watergate Committee under Sen. Sam Ervin (D-N.C.) and Samuel Dash (chief counsel) in 1973-74.

His previous book was “Henry Friendly, Greatest Judge of His Era” (Harvard University Press, 2012), which won Green Bag’s award for “exemplary legal writing.” (See here for a video-recorded 2012 discussion between law professor Alan Morrison and Dorsen about Judge Friendly.)

Dorsen wrote his latest book with the cooperation of the justice. The two first met in 1958 at Harvard Law School. In the years that followed, they became close friends.

Welcome, David, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book, which is quite extensive in its examination of Justice Scalia’s jurisprudence.

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Thursday round-up

By on Apr 13, 2017 at 7:33 am

For the Associated Press, Jessica Gresko describes the “menial duties for the newest justice” that Justice Neil Gorsuch has just assumed. At Supreme Court Brief, Tony Mauro reports that Neal Katyal of Hogan Lovells is scheduled to take the podium in a civil procedure case next Monday, and that if “Gorsuch stands up and exits, that will be the signal that he is recusing himself from the case—possibly because of Katyal’s important role in Gorsuch’s Senate confirmation last month.” At Empirical SCOTUS, Adam Feldman analyzes the transcripts of Gorsuch’s confirmation hearing to “provide a spectrum” of the senators’ views of the nomination and to “hint at nuances in each of the Senators’ preferences.” At Reuters, Lawrence Hurley reports that if “Democrats thought it was hard to stop President Donald Trump’s first U.S. Supreme Court nominee, it promises to be even tougher for them if he gets to fill another vacancy, potentially to replace the most influential justice, Anthony Kennedy.” In a column in The New York Times, Linda Greenhouse argues that by “making an existing Supreme Court vacancy a highly visible part of an electoral strategy,” Republicans have placed “the court in a position of real institutional peril.”

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Petition of the day

By on Apr 12, 2017 at 11:22 pm

The petition of the day is:

16-961

Issues: (1) Whether the Court of Appeals for the Armed Forces erred in holding that the petitioner’s challenge to Judge Martin T. Mitchell’s continued service on the U.S. Air Force Court of Criminal Appeals, after he was nominated and confirmed to the Article I U.S. Court of Military Commission Review, was moot – because his CMCR commission had not been signed until after the U.S. Air Force CCA decided her case on the merits, even though she moved for reconsideration after the commission was signed; (2) whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii), which requires express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate”; and (3) whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the appointments clause.

Whether a criminal defendant must show “prejudice” when an unreasonable error of his counsel leads to “structural error” in his trial is undoubtedly an important legal question on which a number of state and federal courts have split. And we must assume that when the Supreme Court grants review on such a question, the justices intend to answer it, regardless of any small irregularities in the case they choose. Still, the odd facts of Weaver v. Massachusetts lead me to wonder whether the justices will agree, after argument next Wednesday, that this case is a good vehicle for deciding the issue. If not, they have the power to dismiss the case without decision as “improvidently granted.” But the question presented needs resolution, and the justices may be determined to provide as much guidance as they can. Oral argument – with a new justice added to the mix – should provide some clues as to how much guidance that will be.

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[Editor’s note: An earlier version of this preview ran on August 8, 2016, as an introduction to the blog’s symposium on Trinity Lutheran Church of Columbia v. Comer. The post has been updated to reflect events that occurred after the post was originally published.]

One year, three months, and four days after the justices originally agreed to review it, the court will finally hear oral argument in a dispute that began as a battle over a playground – or, to be precise, the surfaces of the playground at the daycare and preschool operated by a Missouri church. The church argues that its exclusion from a state program that provides grants to help nonprofits buy rubber playground surfaces violates the Constitution, because it discriminates against religious institutions. The state counters that there is no constitutional violation, because the church can still worship or run its daycare as it sees fit – the state just isn’t going to pay to resurface the playground. The two sides (and their supporters) do agree on one thing, however: The stakes in the case could be far bigger than playground surfaces.

9V6A0211 (1)

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