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The Supreme Court will release orders from the January 18 conference on Tuesday at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will begin live-blogging at 9:25 a.m. at this link, where readers can sign up for an email reminder when we start the live blog.

The January sitting is over and the Supreme Court will be out of session for a few weeks. But First Mondays keeps on working even when the justices are taking a break. Professors Dan Epps and Leah Litman catch you up on the court’s latest opinions; review the big batch of cert grants, as well as the high-profile petitions the court hasn’t (yet) granted; and play a few fun clips from last week’s arguments. That’s not all—listen to hear us discuss an interesting recent piece by Professor Daniel Hemel on Justice Ruth Bader Ginsburg and the value of life tenure, puzzle over why trust fund babies are suddenly looking to the justices for some tax relief, and explain what Justice Neil Gorsuch’s U.S. Court of Appeals for the 10th Circuit opinions might mean for the court’s recent grant in Rehaif v. United States. And last but not least—Leah goes into Beast Mode as we discuss her favorite topic, the Armed Career Criminal Act, when recapping the unusual 5-4 opinion in Stokeling v. United States.

This week at the court

By on Jan 20, 2019 at 12:00 pm

The Supreme Court will release orders from the January 18 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.

The justices will meet next for their February 15 conference.

The calendar for the February sitting, which will begin on Tuesday, February 19, is available on the Supreme Court’s website.


UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could be argued later in the term, at which point the justices could also potentially review the district court’s decision blocking the government from including the citizenship question on the 2020 census.

On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. On January 17, the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.

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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

Petitions of the week

By on Jan 18, 2019 at 9:37 am

This week we highlight petitions pending before the Supreme Court that address the standard for removal of a juror for misconduct during deliberations, a court’s ability to enable a defendant to earn income to pay restitution, and whether a horizontal agreement to boycott a supplier can escape per se condemnation under Section 1 of the Sherman Act under certain circumstances.

The petitions of the week are:


Issue: Whether a district court may reduce a prison sentence, or impose a probationary term in lieu of imprisonment, to enable a defendant to earn income to pay restitution to his victims.


Issue: Whether, to remove a juror for alleged misconduct during deliberations, a district court must determine that there is no possibility that the allegations of misconduct stem from the juror’s view of the evidence.


Issue: Whether a horizontal agreement to boycott a supplier can escape per se condemnation under Section 1 of the Sherman Act based on the assertion that the conspirators organized the boycott in response to the supplier’s proposed price increase and not for the purpose of reducing competition in the supplier’s market.

Friday round-up

By on Jan 18, 2019 at 7:03 am

Yesterday, the challengers in Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over discovery in a challenge to the government’s decision to add a question about citizenship to the 2020 census, asked the justices to dismiss the case, arguing that a district court decision earlier this week that barred the government from adding the question has rendered the Supreme Court case moot. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Lawrence Hurley and Andrew Chung at Reuters.

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Posted in Round-up

The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the court’s business through reading briefs and written transcripts of oral arguments.

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During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversial because, as I explained previously, it often prevents local takings plaintiffs from getting into federal court. The court first heard argument in October, before Justice Brett Kavanaugh joined the bench, and ordered supplemental briefing in November, asking for more information on one of the plaintiff’s alternative theories. At yesterday’s argument, the justices seemed to search for a narrow way to limit Williamson County’s effect on local takings plaintiffs without overturning the decision or revisiting the meaning of an unconstitutional taking.

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Thursday round-up

By on Jan 17, 2019 at 6:53 am

For this blog, in a post that first appeared at Howe on the Court, Amy Howe analyzes yesterday’s oral argument in Tennessee Wine & Spirits Retailers Association v. Blair, a challenge to Tennessee’s durational residency requirements for liquor licensing. For The Washington Post, Robert Barnes reports that “Supreme Court justices indicated … that they thought Tennessee’s tough residency requirements for those who want to run liquor stores have more to do with protecting in-state economic interests than guarding against the evils of alcohol[, [b]ut they also wondered how far they could go, since the Constitution gives states an especially pivotal role in regulating booze.” Additional coverage comes from Adam Liptak for The New York Times, Richard Wolf for USA Today. Commentary comes in video from ABC News Live’s The Briefing Room.

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Posted in Round-up

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument.

The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts have original jurisdiction.” In 2005, responding to concerns that state courts have been unduly receptive to class actions, Congress adopted the Class Action Fairness Act (often called the CAFA), which included a variety of provisions designed to make it easier for class-action defendants to remove those cases to federal court. One provision, in Section 1332, granted original federal jurisdiction over most class actions seeking a recovery of more than $5 million. Another provision, in Section 1453, provided that “any defendant” can remove a “class action” as defined in Section 1332.

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