Briefly Mentioned :

Briefly Noted :

On Monday, the court is expected to release orders from the May 28 conference at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will be live-blogging starting at 9:25 a.m. at this link, where you can sign up for an email reminder when the live blog begins.

Editor’s note: This is the third post in a series analyzing the Supreme Court’s telephonic oral arguments with live audio instituted due to the COVID-19 pandemic.

The Supreme Court heard some of the most important cases of the term in a month when there almost were no arguments at all. The court canceled its March and April sittings due to COVID-19. With flexible ingenuity, it then rescheduled 10 arguments for May, which was the first time the court has had anything near a full May sitting since OT 1968 — Chief Justice Earl Warren’s final year on the court. Some of the most significant cases the court heard in May 2020 involved issues like the potential release of President Donald Trump’s tax returns and how states may deal with members of the Electoral College who do not vote according to the wishes of the majority of their state’s voters.

Much was said in these arguments, and over two prior posts (here and here) I examined both how these remote, telephonic, live-streamed arguments compared to past arguments this term and how the procedures in this new argument format led to unique forms of participation from the justices. The last post in particular focused on how Chief Justice John Roberts allocated time to the justices in a predominantly uniform manner. This post looks at how the justices and attorneys used their speaking time. Continue reading »


In a press release today, Senators Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., who are both members of the Senate Judiciary Committee, called on the Supreme Court to continue providing live audio of its oral arguments in the future, even after the coronavirus pandemic is over. The senators also requested that the court consider the further step of live video.

Grassley and Leahy cite two recent polls that demonstrate broad, bipartisan support for both continued live audio at the Supreme Court and the use of live video in all courthouses around the country. “Given this widespread support for access to our nation’s highest court – and the countless contributions it makes towards the civics education of the American public,” the senators said in their letter to Chief Justice John Roberts, “there is no reason why pro-transparency measures should end when the Court returns to its normal functions.” Continue reading »


Petitions of the week

By on May 29, 2020 at 10:30 am

This week we highlight petitions pending before the Supreme Court that involve, among other things, under what circumstances the foregone-conclusion exception to the Fifth Amendment privilege against self-incrimination might apply to the compelled production of passwords to encrypted electronic devices, and when the Federal Communications Commission under the Telecommunications Act of 1996 may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition.”

The petitions of the week are below the jump:

Continue reading »

Friday round-up

By on May 29, 2020 at 6:58 am

At Law & Liberty (via How Appealing), John McGinnis worries that in two cases involving “the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President,” “the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning.” In a response at Reason’s Volokh Conspiracy blog, Josh Blackman suggests that “a middle-ground approach to help reconcile the original public meaning of the Constitution with pragmatic concerns” could “help[] to avoid originalism’s burial.”

Continue reading »

Posted in Round-up

Thursday round-up

By on May 28, 2020 at 6:30 am

The latest episode of Bloomberg Law’s Cases and Controversies podcast “highlights an issue that’s been piling up on the high court’s docket: Qualified immunity, the legal doctrine that serves to shield law enforcement from liability even in the face of the most egregious allegations of civil rights violations.” At Slate, Mark Joseph Stern notes the “emerging, cross-ideological consensus that the court’s jurisprudence here has spiraled out of control,” and he hopes the court will grant one of the 10 pending cert petitions “urg[ing] SCOTUS to reevaluate its qualified immunity precedent.”

Continue reading »

Posted in Round-up

John Elwood reviews Friday’s relists.

A funny thing happened on Friday: The Supreme Court relisted cases for the next week’s conference, only one day following its previous conference. That may not seem like a big deal, but it’s the biggest change in the court’s relisting procedures in years. Usually, the court relists cases after it releases orders from the previous conference — usually following a Monday order list (or Tuesday, for holiday weekends). Because the Supreme Court usually relists every case it is going to grant, the absence of a Friday relist for the other cases from last week’s conference suggested that, come Monday, the non-relisted cases would be dead on arrival. This week, that proved to be correct, including for some closely watched cases with significant amicus support. The Friday relists also made for much more informed reading of the order list this week, knowing that you didn’t have to look for the still-living relists among the dead cases for which cert had just been denied.

So about the living cases. All of last week’s relists are back, including most notably the 10 Second Amendment cases that have been kicking around for a while. We have two groups of new relists this week. Continue reading »

Wednesday round-up

By on May 27, 2020 at 6:51 am

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday the court denied, at least for now, “a request by the federal government to put a temporary hold on an order by a federal court that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19.” For The Washington Post (subscription required), Robert Barnes reports that “[t]he court left open the door for the administration[:] It said a new filing could be appropriate later after the case proceeded through lower courts.” Additional coverage comes from Adam Liptak for The New York Times, who reports that “Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch said they would have granted the administration’s request for a stay.”

Continue reading »

Posted in Round-up

Update: Justice Elena Kagan has called for a response in the case; it is due on Thursday, May 28, by 8 p.m.

On Wednesday, two Chicago-area churches asked the justices to allow them to hold services on Pentecost as well. The Elim Romanian Pentecostal Church and Logos Baptist Ministries, which are both Romanian-American Christian churches, argue that the stay-at-home orders and reopening plan for Illinois violate the Constitution by imposing a 10-person limit on worship services that does not apply to other services deemed “essential,” such as retail stores, liquor stores, restaurants and office buildings.


A southern California church has asked the Supreme Court to block the enforcement of stay-at-home orders issued by California and San Diego County, arguing that the orders are unconstitutional because they discriminate against places of worship. Continue reading »

Today the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal court that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19. The inmates’ victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district court’s most recent order, and it indicated that the government could return to the Supreme Court to “seek a new stay if circumstances warrant.” Moreover, three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the government’s request.

Today’s order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility. Continue reading »

No new grants today

By on May 26, 2020 at 10:41 am

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any cases to their merits docket for next term, nor did they seek the views of the federal government in any new cases. And perhaps most notably, the justices did not act on any of the Second Amendment cases that they have now considered at three consecutive conferences; somewhat unusually, the electronic dockets for those cases (see, for example, here) all indicated late last week – that is, before today’s order list was even released – that the cases had been relisted for the upcoming conference on Thursday, May 28.

The court also granted a motion to substitute Donna Stephens, the wife of Aimee Stephens, as the respondent in R.G. & G.R. Harris Funeral Homes v. EEOC, in which the justices are considering whether federal employment-discrimination laws protect transgender employees. Aimee Stephens died earlier this month of complications from kidney disease.

This post was originally published at Howe on the Court.

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