Monday round-up

AMY HOWE NOV 30, 2015 5:45 AM

Today is the first day of the December sitting, and the Court will hear oral arguments in two cases.  The George Washington Law Review’s “On the Docket” previews all of the December cases.  Rory Little previewed Mussachio v. United States, in which the Court will consider two issues relating to federal computer crimes, for this blog; I did the same for Green v. Brennan, in which the Justices will consider when the filing period begins to run for a federal employee who is alleging that he was constructively discharged.  Commentary on Green comes from Scott Oswald, who at the Whistleblower Law Blog contends that, if the Tenth Circuit’s ruling is allowed to stand, “it will become far too easy to deprive federal workers of their day in court.”

On Wednesday the Justices will hear oral argument in Gobeille v. Liberty Mutual Insurance Company, in which they will consider whether ERISA preempts a state law that requires “all payer” health care databases.  Ronald Mann previewed the case for this blog, while in The New England Journal of Medicine Nicholas Bagley and Christopher Koller argue that the case “threatens to cripple these databases and other state initiatives that aim to improve the health care system.”

Next week the Court will hear oral arguments in some of the higher-profile cases of the Term.  In The National Law Journal (subscription or registration required), Tony Mauro looks ahead to Fisher v. University of Texas at Austin, the challenge to the university’s consideration of race in its undergraduate admissions process, and concludes that “it will mostly—but not totally—be a case of déjà vu all over again.” In the Los Angeles Times, David Savage reports that university officials are “struggling to explain a policy that gives an extra edge to Latino and African American students from middle-class households and top-performing high schools.”

Other coverage and commentary focus on the challenge by twenty-six states to the Obama administration’s immigration policy and the federal government’s petition seeking review of a lower court decision putting the policy on hold.  In USA Today, Richard Wolf has an overview of the case and some of the undocumented immigrants who could be affected by the policy, while in The Wall Street Journal Jess Bravin reports on the states’ request for more time to respond to the government’s petition.  And at Balkinization, Marty Lederman contends that “the Court should set argument in the case this Term, and decide it by the end of June 2016, for a very practical reason–one that can be seen clearly by considering the two principal, possible dispositions of the case.”

Briefly:

• In her column for The New York Times, Linda Greenhouse discusses the birth control mandate and abortion cases on the Court’s docket and concludes that “what the Supreme Court may or may not grasp is that it has its hands on something deeper yet: a struggle over modernity, a battle for the secular state in which women can make their choices and design what Justice Ginsburg calls their life course.”
• In the Blog of Legal Times (subscription or registration required), Tony Mauro reports on a response to an invitation to “come up with new ‘top ten’ rankings for the U.S. Supreme Court,” which Meg Penrose used as an opportunity “to underscore the dearth of female justices through history.”
• At the blog of the National Conference of State Legislatures, Lisa Soronen looks ahead at the death penalty case Williams v. Pennsylvania, in which the Court will consider whether “a judge presiding over a case his office worked on when he was prosecutor [has] to recuse himself, particularly if his vote wouldn’t make a difference in the outcome of the case.”
• In an op-ed for USA Today, Tony Mauro urges the Court to grant review in a challenge by a female Air Force officer whose daughter suffered serious injuries during childbirth to the Feres doctrine,“a 1950 decision by the Supreme Court” holding that “military members themselves cannot sue the government for injuries they suffer on the job.”
• At his Election Law Blog, Rick Hasen reports that Justice Anthony Kennedy, “in his capacity as Circuit Justice for the Ninth Circuit, has enjoined the counting of ballots in an upcoming election in which only those with Native Hawaiian ancestry may vote,” and in light of the order he concludes that “there’s a fairly good chance this issue eventually ends up on the merits at the Supreme Court.”
• At Jost on Justice, Kenneth Jost explains why “Supreme Court reporters will never lack for good copy as long as Antonin Scalia continues serving as a justice.”

If you have or know of a recent (published in the last two or three days) news article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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