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The Supreme Court will release orders from the April 18 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday.
On Monday the Supreme Court hears oral argument in Food Marketing Institute v. Argus Leader Media; Mark Fenster has our preview.
On Monday the Supreme Court also hears oral argument in Fort Bend County, Texas v. Davis; Charlotte Garden has our preview.

Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:


Posted in Merits Cases

On its face, Department of Commerce v. New York asks whether the government may add a question about citizenship status to the 2020 decennial census. But as Professor Justin Levitt explains in a forthcoming essay, if the government wins, the citizenship data could influence the allocation of representation in the state legislatures, raising a whole new set of constitutional questions left unresolved by the Supreme Court’s 2016 decision in Evenwel v. Abbott.

In 2018, the government announced that the 2020 census would include a question to determine the citizenship status of every person in the United States. A number of states, localities and civil rights groups challenged the addition of the citizenship question, arguing that the government’s reasons for including the question were unsound and were a pretext for discrimination, and that including the question would depress the response rate. The government responded by arguing that the challengers lacked standing, that the choice of census questions was unreviewable and that in any case the addition of the citizenship question was justified by the need to gather such data to enforce the Voting Rights Act. (Amy Howe provides a more detailed overview of the case.)

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Petitions of the week

By on Apr 19, 2019 at 9:59 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the constitutionality of invalidating a student-aid program because it affords students the choice of attending religious schools, whether the Fourth Amendment requires a caseworker who suspects abuse to obtain a warrant to strip-search a child, and the compatibility of the “physical realm” test with the Patent Act and Supreme Court precedent.

The petitions of the week are:


Issues: (1) Whether the Fourth Amendment requires a caseworker who suspects abuse to obtain a warrant to strip-search a child—an issue that has produced an acknowledged 4-2 circuit split, and is nearly identical to the issue the Supreme Court granted certiorari on but did not resolve in Camreta v. Greene; (2) whether, even if a warrant is not required in this context, clearly established federal law prohibits conducting warrantless strip searches of children at school when there are no “specific suspicions” of danger or wrongdoing justifying the “categorically extreme intrusiveness of a search down to the body”; and (3) whether the Supreme Court should reconsider its qualified-immunity jurisprudence to accord with historical common-law practice and to eliminate the widespread confusion plaguing current qualified-immunity doctrine.


Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.


Issue: Whether the U.S. Court of Appeals for the Federal Circuit’s “physical realm” test contravenes the Patent Act and the Supreme Court’s precedent by categorically excluding otherwise patentable processes from patent eligibility.

Friday round-up

By on Apr 19, 2019 at 6:46 am

As Amy Howe reports for this blog, the court issued revisions to its rules yesterday that reduce the word limits for merits briefs and “require the parties to a case before the Supreme Court to identify any lower-court cases that are directly related to the Supreme Court proceedings.” At Bloomberg Law, Kimberly Robinson reports that practitioners welcomed the latter changes, which are “intended to reduce ‘missed’ conflicts, where the justices recognize late in proceedings that there are grounds for recusal.”

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Posted in Round-up

The Supreme Court issued revisions to its rules today. The changes largely mirror the amendments proposed late last year, with one notable exception: Although the justices reduced the word limits for opening briefs on the merits, they left the existing word limits for reply briefs in place.

Changes to two rules – Rules 14.1 and 15.2 – require the parties to a case before the Supreme Court to identify any lower-court cases that are directly related to the Supreme Court proceedings. This change, a comment to the rules explains, “will assist in evaluating whether a Justice’s involvement in a case before the Court might require recusal.” The new requirement comes just a little over a year after Justice Anthony Kennedy – who has since retired – had to recuse himself from a tribal-fishing-rights case  when he belatedly realized that he had participated in the case before joining the Supreme Court in 1988, as a judge on the U.S. Court of Appeals for the 9th Circuit. With Kennedy sitting out the case, the court deadlocked 4-4, leaving the lower court’s decision in place.

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Relist Watch: The Muller Report

By on Apr 18, 2019 at 5:42 pm

John Elwood reviews Monday’s relists.

I normally try to have Relist Watch written up by Wednesday after the court issues its order list. Here it is late Thursday and I’m just getting it out. It’s not just that I’m lazy, though I am. It’s that I’ve been mulling over the five new relists, and what I think their prospects are for Supreme Court review. In fact, I’ve been mulling these cases so deeply that you could call today’s installment the “Muller Report.” I like the ring of it.

I’ve also spent the extra time coming up with especially funny jokes, dank memes and hilarious GIFs. In fact, they are so good that there’s a danger that if people could just read everything, unrestrained mirth would disrupt the workplace. So I’ve taken the precautionary measure of temporarily obscuring the jokes that pose the greatest risk of disruption until some future national holiday when they can be safely read. I know some of you will be frustrated to read this entire document just to find that all the best bits are blacked out. But the redactions were compelled by the need to prevent harm to ongoing matters.

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On Tuesday, the Supreme Court heard oral argument in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. North Carolina hopes to convince the court that its method of taxing trusts, with jurisdiction based on an in-state beneficiary, passes constitutional muster. The court greeted the state’s arguments with significant skepticism.

As a quick recap, North Carolina’s Department of Revenue is defending tax liability imposed on income earned by the Kimberley Rice Kaestner 1992 Family Trust between 2005 and 2008. During this period, the trust’s beneficiaries were all North Carolina residents, but the trust itself was administered in New York by trustees who were not North Carolina residents, and the trust made no distributions in the relevant period. (The trust concedes, as it must, that distributions actually paid to a North Carolina beneficiary would be taxable in that state as income to the beneficiary.)

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McDonough v. Smith, argued Wednesday, saw justices and attorneys repeating metaphors about heads spinning and constitutional rights swimming. The justices seemed inclined to rule for the petitioner (supported by the United States) that his claim was timely and that the limitations period on a civil action should not begin until favorable termination of criminal proceedings. But the likely scope of the ruling remains uncertain.

Respondent Youel Smith prosecuted petitioner Edward McDonough, a former election official, for fraud arising from a primary election; the prosecution was initiated and continued on allegedly fabricated evidence, fabricated affidavits, false testimony and faulty DNA analysis. McDonough was indicted and tried twice, the first trial ending in a mistrial and the second ending in an acquittal. Less than three years after the acquittal, McDonough filed an action in federal district court under 42 U.S.C. § 1983, alleging malicious prosecution and fabrication of evidence before the grand jury and at the two trials, in violation of the Fourth, Fifth, Sixth and 14th Amendments. The lower courts dismissed the fabrication-of-evidence claim as untimely, because the three-year statute of limitations began to run when McDonough became aware of the use of fabricated evidence, which occurred well before his acquittal and thus more than three years before he filed the federal civil action. The issue before the Supreme Court is whether the limitations period instead began to run only when the state criminal proceedings terminated in McDonough’s favor with his acquittal, making his Section 1983 action timely.

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Thursday round-up

By on Apr 18, 2019 at 6:44 am

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday a Louisiana abortion clinic filed a cert petition asking the Supreme Court to strike down a state law requiring abortion providers to have admitting privileges at nearby hospitals; the justices had put the law on hold in February, in June Medical Services v. Gee. At AP, Mark Sherman reports that “[i]f the justices agree to hear the Louisiana case, as seems likely, it could lead to a decision on the high-profile abortion issue in spring 2020, in the midst of the presidential election campaign.” At Rewire.News, Jessica Mason Pieklo writes that “[a]dvocates have asked the Court to grant their request to summarily reverse the Fifth Circuit,” meaning that “they want the Court to overturn the Fifth Circuit without briefs or oral arguments on the merits of the case” because the Louisiana law “is identical to provisions the Roberts Court already struck down as unconstitutional.”

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Posted in Round-up

On Tuesday, the Supreme Court heard oral argument in Parker Drilling Management Service, Ltd. v. Newton, a case about whether workers employed on drilling platforms more than three miles off the coast of California are entitled to the protections of California’s more worker-friendly wage-and-hours law or whether a federal statute, the Outer Continental Shelf Lands Act, limits them to the benefits required by the Fair Labor Standards Act. The justices seemed intrigued (and occasionally frustrated) by the unfamiliar subject matter of the case and offered spirited challenges to the arguments offered by both sides. Ultimately, however, it appeared that the majority of the justices had little appetite for opening up offshore drilling platforms to broader state regulation.

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