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Tuesday round-up


  • In The New Yorker, Jeffrey Toobin surveys the effect of Justice Antonin Scalia’s death on the cases decided at the end of last term and the implications for the court of a Trump or Clinton victory in November, concluding that the “hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day.”
  • In the National Law Journal, Anthony Franze and Reeves Anderson examine the influence of amicus briefs on last term’s Supreme Court cases, noting that “amici filed more than 860 briefs, participated in more than 90 percent of merits cases, and, more often than not, seemed to capture the justices’ attention.”
  • At Empirical SCOTUS, Adam Feldman surveys the attorneys who have argued the largest number of close Supreme Court cases over the past six years and looks for patterns in the way the justices align with repeat attorneys, observing that “although there is some pattern in the voting alignments between attorneys and Justices, some predictable patterns did not play out as might be expected.”
  • In the Harvard Business Review, Avinash Dixit and David McAdams apply game theory to the Merrick Garland nomination stalemate, identifying several “strategic obstacles” that make it likely make it likely “that Garland will not be confirmed as a Supreme Court justice during the Obama presidency, despite his qualifications as an accomplished jurist and consensus nominee.”

  • In The National Law Journal (subscription or registration required), Tony Mauro reports on remarks by Chief Justice John Roberts at last weekend’s opening of the Smithsonian Institution’s National Museum of African American History and Culture, noting that Roberts “spoke about the U.S. Supreme Court’s crucial role—both negative and positive—in the history of African American life.”
  • At the Pew Research Center, Bruce Drake offers “five facts on how Americans view the Supreme Court” in advance of the new term that begins next week.
  • For Keen News Service, Lisa Keen previews three cases the court may consider during the upcoming term that “could have significant impact on prospects for equal protection for LGBT people.”
  • In The Faculty Lounge, Eric Muller discusses Bravo-Fernandez v. United States, which is scheduled for oral argument next Tuesday, maintaining that “there is no Double Jeopardy problem in this case” because “Bravo-Fernandez isn’t an inconsistent verdicts case at all.”
  • Mark Walsh in the ABA Journal previews Buck v. Davis, which will also be argued next week, “the case of Texas death row inmate Duane E. Buck, who faces procedural hurdles in challenging his own trial lawyer’s decision, during the sentencing phase, to present an expert witness who predicted the future dangerousness of the defendant based in part on the fact that Buck is African-American.”
  • For Cato at Liberty, Ilya Shapiro and Thomas Berry reiterate the Cato Institute’s argument in its amicus brief in National Labor Relations Board v. SW General, a case on the Supreme Court’s November docket that involves the president’s authority to appoint people to high-level office in an acting capacity, “urging the Court to adopt a “clear statement” rule when interpreting statutes that let the president bypass advice and consent.”
  • For CBS Sports, Jon Solomon reports that the Supreme Court may decide this week whether to grant review in a case that “may determine the future of college sports.”
  • The Notice and Comment blog has just concluded an online symposium on the influence of Bowles v. Seminole Rock & Sand Co., the influential case requiring “courts—generally—” to “defer to an agency’s interpretation of its own ambiguous regulations.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Sep. 27, 2016, 8:20 AM),