The website of the Consumer Financial Protection Bureau, created in 2010 under the Dodd-Frank Act as a response to the 2008 financial crisis, describes the CFPB as a “U.S. government agency that makes sure banks, lenders, and other financial companies treat you fairly.” Today the Supreme Court agreed to hear a challenge to the constitutionality of statutory restrictions on the president’s ability to remove the director of the CFPB from office. The dispute is not merely an academic one: If the justices agree that the restrictions violate the doctrine known as the separation of powers – the idea that the Constitution divides the different functions of government among the executive, judicial and legislative branches – their ruling could potentially unravel all the CFPB’s decisions in the nine years since its creation.

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On Wednesday, the Supreme Court heard argument in Rotkiske v. Klemm. What seemed like a run-of-the-mill statutory-interpretation case revealed itself to be deeply convoluted, involving uncertainty both about which issues had been waived in earlier proceedings and what the question presented even means. These fundamental questions clouded the argument enough that I would not be surprised to see this case dismissed as improvidently granted.

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Friday round-up

By on Oct 18, 2019 at 6:58 am


  • Pratheepan Gulasekaram analyzes Wednesday’s oral argument in Kansas v. Garcia, which asks whether federal immigration law preempts a state prosecution for identity theft based on using someone else’s Social Security number to obtain employment, for this blog.
  • At Bloomberg Law, Kimberly Robinson reports that yesterday the court “issued guidance for filers of friend-of-the-court briefs that ‘clears up a number of contested issues previously resolved through word-of-mouth lore among practitioners,’ one of them said.”
  • In an op-ed for USA Today, Gabe Roth calls on the court to release information about “which justices … are voting to grant review in the major cases the court is taking,” such as the recently granted abortion case June Medical Services v. Gee; he argues that “[i]f the Supreme Court’s work is truly done apolitically, we would see Republican-appointed justices voting for grants with Democratic-appointed justices just as often as with their Republican-appointed colleagues.”
  • At PrawfsBlawg (via How Appealing), Richard Re explains that in Ramos v. Louisiana, in which the justices will decide whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states, “a lot of the Court’s discussion at oral argument focused on issues of stare decisis, particularly what to do with fragmented decisions.”

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The Supreme Court heard oral argument yesterday in Kansas v. Garcia, which presents a potential conflict between state identity-theft prosecutions and federal immigration law. The justices must decide whether the federal Immigration Reform and Control Act preempts the state’s prosecution of unauthorized noncitizens who used stolen social security numbers to gain employment. After a lively hour of argument, during which all but the famously reticent Justice Clarence Thomas asked multiple questions, the fate of Kansas’ application of its identity theft laws to the noncitizen-defendants remains difficult to predict. Generally speaking, however, the court’s liberal wing seemed disposed towards finding the state prosecutions preempted, whereas Justices Neil Gorsuch, Brett Kavanaugh and Samuel Alito appeared skeptical of the noncitizens’ preemption arguments.

Kansas Attorney General Derek Schmidt (Art Lien)

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The return of Relist Watch Select

By on Oct 17, 2019 at 2:09 pm

John Elwood reviews Tuesday’s relists … barely.

Because the press of business is especially pressing right now, this week we’ll once again be favoring our readership with the affordable luxury of Relist Watch Select.TM That means you’re on your own if you’d like to figure out which of last week’s relists aren’t returning (answer: most of them), or would like to know more about the smattering of interesting new additions.

Let me note only that the court has released a couple of cases it has been holding since the June 27 conference for nondelegation challenge Gundy v. United States, 17-6086, and relisted them for tomorrow. So it appears that the court’s consideration of the rehearing petition in that case is coming to a head.

That’s all for this week. There’s no conference next week, which means our next installment may not arrive until the week of October 28.

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Petitions of the week

By on Oct 17, 2019 at 10:00 am

This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment invalidates a longstanding state constitutional provision limiting judges affiliated with any one political party to no more than a “bare majority” on the state’s highest courts and whether the Virgin Islands Supreme Court is bound by the Supreme Court’s equal-protection decisions when Congress explicitly applied the equal protection clause to the territory via a federal statute.

The petitions of the week are below the jump: Continue reading »

This week on SCOTUStalk, Amy Howe sits down with Kevin Russell to discuss the oral arguments in the LGBT employment discrimination cases heard by the court last week. The pair talk about Pam Karlan’s opening argument in Bostock v. Clayton County, the two-minute rule, Justice Kagan’s interpretation of “because of sex” and Justice Gorsuch’s concern about the “massive social upheaval that would be entailed” by deciding that sex discrimination under Title VII covers transgender people. Kevin Russell is a partner at Goldstein & Russell and has argued 12 cases before the Supreme Court.

Disclosure: Goldstein & Russell, P.C., is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v EEOC.

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Thursday round-up

By on Oct 17, 2019 at 6:59 am

Yesterday the justices heard argument in Mathena v. Malvo, in which convicted D.C.-area sniper Lee Boyd Malvo is asking the court to overturn his sentence of life without parole for murders committed in Virginia in 2002, when Malvo was 17. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. At Fox News, Barnini Chakraborty and Bill Mears report that the court grappled with “whether Malvo, now 34, should be resentenced in Virginia in light of a pair of recent Supreme Court rulings restricting life-without-parole sentences for crimes committed by juveniles.” Ariane de Vogue reports at CNN that “the justices struggled for more than an hour discussing the impact of their own prior cases as well as the details concerning Virginia’s sentencing scheme.” Audio coverage of the argument comes from Nina Totenberg at NPR. At Quartz, Ephrat Livni argues that “[a] win for Malvo … would bring the harshly punitive American approach a little closer to being in line with the rest of the globe.” At Crime & Consequences, Kent Scheidegger offers his “initial impressions” of the oral argument, and concludes that “[w]ith this many splits among the Justices, there is no predicting the outcome.” Additional commentary on the argument comes from Mark Joseph Stern at Slate (via How Appealing).

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It has been 17 years since John Allen Muhammad and Lee Boyd Malvo, known as the “D.C. snipers,” shot and killed 12 people and injured six more. The Washington, D.C., area was paralyzed with fear until the then-42-year-old Muhammad and Malvo, who was then 17, were arrested at a Maryland rest stop. Muhammad was sentenced to death and executed in 2009, and Malvo was sentenced to life in prison without the possibility of parole. This afternoon the Supreme Court heard oral argument in Malvo’s challenge to that sentence. After an hour of oral argument, it seemed possible that Malvo’s case might not be over yet, with Justice Brett Kavanaugh potentially the pivotal vote.

Toby J. Heytens, Virginia Solicitor General, arguing for petitioner (Art Lien)

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As much as it is discussed and debated, especially lately, there is remarkably little case law concerning “executive privilege”—the idea that there are at least some internal executive branch communications that are shielded against compelled disclosure. The Supreme Court has decided exactly one case involving the privilege, and even that decision—in the Watergate tapes case, United States v. Nixon—raised as many questions as it answered. One reason courts have historically had so little to say about the privilege is because, as the Congressional Research Service explained in 2014, “[t]he vast majority of these disputes are resolved through political negotiation and accommodation.” Most privilege claims arise in disputes between Congress and the executive branch, and most of the time, the involved parties are able to reach some kind of compromise—or the relevant administration and/or Congress ends—before the dispute is conclusively settled by the courts. That’s why the most voluminous discussions of executive privilege have come in memoranda by the Justice Department’s Office of Legal Counsel—rather than judicial decisions.

But “political negotiation and accommodation” have not exactly characterized the relationship between the Trump administration and the House of Representatives over the past nine months. As a growing list of witnesses have refused to appear before Congress or turn over requested documents, the House has issued a steadily increasing number of subpoenas, which has in turn provoked litigation over the scope of Congress’ subpoena power and, in some circumstances, whether and to what extent executive privilege provides a defense even against duly issued subpoenas. Last Friday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided the first of these disputes, holding that President Donald Trump could not block one of his accounting firms from complying with a subpoena for financial records in the firm’s possession because the subpoena was within Congress’ authority to issue. And that ruling came on the heels of an eye-opening letter sent last Tuesday by White House Counsel Pat Cipollone to House Speaker Nancy Pelosi and three House committee chairs, suggesting that the White House will not comply with any information requests related to a potential impeachment inquiry.

For now, at least, these disputes are pitched at a categorical level. If and when courts reach specific claims of executive privilege, they’ll find some clarity, but also a series of open questions, in the relevant case law. The following post tries to clarify what’s been settled and what hasn’t.

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