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Tuesday round-up

Yesterday, Chief Justice John Roberts, Justice Stephen Breyer, and Justice Samuel Alito, along with several jurists from the United Kingdom visiting the United States as part of a legal exchange program, participated in a reenactment of a 1794 Supreme Court case, Georgia v. Brailsford, in the same Philadelphia courtroom in which the early Court once met. Coverage of the event comes from this blog’s Mark Walsh. Additional coverage comes from Tony Mauro at (subscription or registration required), who describes the case as a “quirky dispute that has been billed as the only reported Supreme Court case in which the court itself held a jury trial,” and from Richard Wolf in USA Today, who observes that the three Justices presiding over a case that was originally heard by four members of the 1794 Court “added a modern touch” to the proceedings: “They were a justice short.”


  • Adam Liptak reports in The New York Times on Pena-Rodriguez v. Colorado, which asks whether allegations of racial bias during jury deliberations allow an exception to the rule that forbids post-trial testimony about juror behavior during deliberations; the case “will require the justices to choose between keeping jury deliberations secret and sustaining the Sixth Amendment’s promise of an impartial jury.”
  • At Empirical Scotus, Adam Feldman examines the Justices’ voting preferences in cases involving “civil rights more specifically and individual rights more generally”; in his view, the figures show “the Court as a whole favoring the liberal position in civil rights cases, especially over time and up to the current Term,” and they present “the possibility of a majority coalition in these cases even on an eight-member Court.”
  • At his eponymous blog, Ross Runkel highlights three pending cert. petitions that ask “the Supreme Court to resolve a simple issue: Does the NLRA bar class action waivers in employment arbitration agreements?”
  • In an article in Cato’s Supreme Court Review, Mark Rienzi discusses the fallout from last Term’s ruling in Zubik v. Burwell, the challenge to the Obama administration’s birth-control mandate and the accommodation offered to religious non-profits, concluding that the “Court’s unorthodox approach in Zubik” “makes an administrative resolution more likely and continued litigation less likely.”
  • In an opinion piece for The National Law Journal, Jordan Steiker contends that Buck v. Davis, which centers on the availability of review of a challenge to a Texas death sentence when defense counsel introduced racially biased “expert” testimony during sentencing, offers “an opportunity for the Supreme Court to declare the obvious — that a death sentence cannot depend on the skin color of the defendant,” as well as to “remind the Court of Appeals that it should not rubber stamp denials of relief and provide Texas death-sentenced inmates an appropriate forum for their substantial constitutional claims.”
  • In an op-ed for USA Today, Glenn Harland Reynolds argues that because “the Supreme Court isn’t above politics,” and its “decisions are deeply influential on all sorts of aspects of Americans’ lives,” making the Court function “more like a legislature than a court,” Justices “should be elected for a fixed term: say 10 years, so as not to match the incumbency of any single president.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Sep. 20, 2016, 7:55 AM),