Breaking News

Thursday round-up

Tuesday’s decisions and orders continue to generate coverage and commentary.  Coverage of the Court’s announcement that it will take on Evenwel v. Abbott, the Texas “one person, one vote” case, comes from David Savage and David Lauter, who in the Los Angeles Times focus on the decision’s potential effect on California politics, and – also in the Los Angeles Times – from Cathleen Decker, who notes that the Court’s “unexpected decision to take up [the] case poses perhaps the most acute threat in a generation to Latino political strength in California” but adds that “how much of the threat actually materializes is decidedly less known.”  Commentary comes from Noah Feldman at Bloomberg View, where he suggests that the Court’s decision “will affect the nature of American democracy for generations to come”; from Seth Lipsky, who in the New York Post similarly suggests that the case could “ignite an earthquake in American politics”; from Joey Fishkin, who at Balkinization argues that the case “comes at the law in a kind of funhouse-mirror reverse, aiming to destroy in Equal Protection’s name a substantial chunk of what that clause has built”; at the Constitutional Accountability Center’s Text and History Blog, from David Gans, who contends that “the Court’s decision to hear [the case] is a major development, teeing up what will likely be another huge Roberts Court decision on voting rights and equality”; and from Marty Lederman, who in a post at Balkinization focuses on “the argument made by the United States the last time this issue reached the Court, in the government’s brief in opposition to certiorari in County of Los Angeles v. Garza, No. 90-849” – in a brief signed by then-Deputy Solicitor General John Roberts. 

Coverage of Monday’s decision in Wellness International Network v. Sharif, holding that a bankruptcy court adjudication of a Stern v. Marshall claim is permissible under Article III so long as the parties consent, comes from this blog’s Ronald Mann, while commentary for this blog comes from Daniel Bussel.

The Court also issued its decision in the False Claims Act case Kellogg Brown & Root Services v. United States ex rel. Carter.  Ronald Mann covered the decision for this blog, while the Northwestern University Law Review’s online version has a podcast with a group of students discussing the case.

Yesterday the Obama administration decided that it would not ask the Supreme Court to stay a decision by the U.S. Court of Appeals for the Fifth Circuit that in turn declined to stay an order by a federal trial judge blocking the implementation of the administration’s policy delaying the deportation of over four million undocumented immigrants.  Lyle Denniston covered that announcement for this blog, with other coverage coming from Michael Shear of The New York Times.


  • In her column for The New York Times, Linda Greenhouse discusses litmus tests for potential Supreme Court nominees and concludes that, because neither presidential candidate was asked about the Supreme Court at all during the 2012 campaign, “if a Citizens United litmus test serves only to put the Court on the campaign screen, where it urgently belongs, it will have done some good before the first vote is cast.”
  • In The Wall Street Journal, Jess Bravin reports on a proposal to have the Justices recuse themselves when companies in which they own stock file “friend of the court” briefs.
  • At Ogletree Deakins, Hera Arsen anticipates the Court’s decision in EEOC v. Abercrombie & Fitch, observing that it “will be interesting to see how the Court resolves two issues in this case: (1) which party is more appropriate to bear the burden of notice, and (2) whether employers will be expected to have ‘actual knowledge’ of a conflict or whether it will be sufficient for employers to merely ‘understand’ or ‘assume’ that a conflict exists for a duty to accommodate to arise.”
  • At the Stanford Law Review Online, Mark Rienzi weighs in on the same-sex marriage cases and the possible conflict with religious liberties; he contends that, “[b]y emphasizing that substantive due process protects people on all sides of important questions, the Court can demonstrate that same-sex marriage and religious liberty need not conflict.”
  • At The New Rambler, Calvin Terbeek reviews Judicial Politics in Polarized Times, a new book that focuses on some of the hot-button issues that have recently, or are currently, before the Court.
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen discusses the Court’s recent decision in Tibble v. Edison International, concluding that “the bottom line on this case is simple:  in the ERISA context, employers are responsible on an ongoing basis to make sure that investments are prudent and that fees are reasonable as part of their fiduciary duty. State and local governments are wise to follow suit given their own fiduciary duty under state law.”
  • At the Pacific Legal Foundation’s Liberty Blog, Wen Fa reprints excerpts from his op-ed (with Deborah La Fetra) on DIRECTV v. Imburgia, in which the Court will consider whether a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in DIRECTV v. Imburgia.  However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Thursday round-up, SCOTUSblog (May. 28, 2015, 12:00 PM),