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Thursday round-up

There is still more commentary on Monday’s ruling in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts.  In posts at casetext, Robert Thomas asserts that the ruling “reaffirmed the principle that we the people mostly get to choose who will be included in ‘We The People,’ and when all are included, the federal courts will not interfere.”  David Carpenter contends that “the Court has preserved the well-settled practice of using total population while upholding the principles of representational equality.  Battles over alternative apportionment schemes – in state legislatures, and then courts if necessary – are left for another day.”  And Jessica Ring Amunson argues that, “for now, it is clear that total population is the only viable method for a state to redistrict without fear of future ‘one person one vote’ litigation.”  At George Washington Law Review’s On the Docket, Derek Muller predicts that “[w]hether states (or localities) may exclude incarcerated prisoners, non-citizens, or non-voters, among other theories, when drawing districts may be tested in the very near future—and the Court’s logic in Evenwel will surely be at the center of the disputes.”  At The Narrowest Grounds, Asher Steinberg complains that the Court has “turned the rule into the one-x, one-y rule.  It’s hard to see how the Constitution can mandate the equalization of something or another among some or another set of persons, within 10% deviation no less, without providing, or being construed to provide, what that something or another or some or another set of persons is.”  At the Claremont Journal of Law and Policy, Jerry Yan and Zachariah Oquenda “argue that States should not be required to equalize voter population and that the choice of what population to use when drawing legislative districts should be left to the States.”  And at The Guardian, Scott Lemieux describes the decision as “good news, but” also “a qualified victory,” because it “leaves open the possibility that states could undermine ‘one person, one vote,’ and at least some red state legislatures are likely to try it.”


Coverage of the nomination of Judge Merrick Garland to succeed the late Justice Antonin Scalia comes from Richard Wolf of USA Today, who reports that Garland and Chief Justice John Roberts “agreed on almost everything during two years together on the nation’s second most powerful court”; and Emmarie Huetteman of The New York Times, who reports that Garland “sat down Tuesday with Senator John Boozman of Arkansas for his first meeting with one of the many Republicans who oppose him, and was met with a stark reminder of the bleak path he faces as President Obama’s nominee to the Supreme Court.”

Commentary on Garland’s nomination and the effect that Garland would have on the Court if he were confirmed comes from Howard Wasserman, who at PrawfsBlawg agrees with Geoffrey Stone that Garland would “move the Court left, but not back to the days of a bloc of six reliably liberal Justices”; Erwin Chemerinsky, who in The Atlantic imagines what it might “mean to have five justices on the Supreme Court who were appointed by Democratic presidents”; and Adam Winkler, who in an op-ed in USA Today argues that “we need the Senate to hold hearings in which senators can ask him to explain his votes and reveal to the nation his attitude about the Second Amendment.

Commentary on the oral argument and supplemental briefing order in Zubik v. Burwell, the challenge to the birth-control mandate and the accommodation offered to religious non-profits that object to providing their female employees with health insurance that includes access to certain forms of birth control, comes from Leslie Griffin, who at Hamilton and Griffin on Rights concludes that the argument and order “demonstrate that legal analysis of the four elements of a [Religious Freedom Restoration Act] claim—a sincerely held religious belief, a substantial burden, a compelling governmental interest, and the least restrictive means—has become incoherent.”  And at Verdict, Michael Dorf suggests that the order “looks very much like an attempt to perform a function that federal district judges routinely play: facilitating settlement.”

Last week’s decision in Luis v. United States, holding that the pretrial restraint of a criminal defendant’s untainted asset violates the Sixth Amendment, continues to spawn coverage and commentary.  At Bloomberg BNA, Lance Rogers reports that “Court watchers have characterized the decision as an important victory for the Sixth Amendment right to counsel because the court’s previous forfeiture decisions suggested that the right was much more restricted and forfeitures have been on the rise.”  And commentary comes from David Siegel, who at the New England Law Review’s On Remand suggests that the decision “reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice.”



  • In The National Law Journal (subscription or registration may be required), Tony Mauro reports that George Mason has tweaked the name of its law school, which it named after the late Justice Antonin Scalia, and he notes that Scalia “hated acronyms anyway.”
  • At Medium, David Leopold describes the challenge to the Obama administration’s deferred-deportation policy, slated for oral argument on April 18, as an opportunity for Chief Justice John Roberts to “show his mettle.”
  • Elsewhere at The Narrowest Grounds, Steinberg looks back at last week’s oral arguments in Welch v. United States and suggests that the case “raises a difficult puzzle about why courts invalidate vague statutes that have clear applications.”
  • At National Review, Roger Clegg and Ilya Shapiro discuss “a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon.”

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[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on amicus briefs filed in support of the respondents in Zubik.  However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Thursday round-up, SCOTUSblog (Apr. 7, 2016, 8:18 AM),