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Monday round-up

The court’s November sitting begins today with oral arguments in two cases. The first is Fry v. Napoleon Community Schools, which stems from a school district’s refusal to allow a disabled child to bring her service dog to school; Amy Howe previewed the case for this blog. Another preview of Fry comes from Nicholas Velonis and Taniel George for Cornell’s Legal Information Institute. Nina Totenberg reports on the case for NPR. Next up is Star Athletica v. Varsity Brands, which involves the use of copyright to protect functional objects – in this case, the designs on a cheerleading uniform — and which Ronald Mann previewed for this blog. Weiru Fang and Cassandra Desjourdy preview the case for Cornell. George Washington Law Review’s On the Docket previews all the cases in the November sitting.

Last Friday, the court granted review in Gloucester County School Board v. G.G., the case stemming from a transgender student’s request to use the boys’ bathroom at his high school. Amy Howe reports on the grant for this blog. Additional coverage comes from Richard Wolf at USA Today, Chris Geidner at Buzzfeed, Lawrence Hurley at Reuters, Robert Barnes and Moriah Balingit at The Washington Post, Ian Millhiser at ThinkProgress, Mark Sherman and Alanna Durkin Richer at AP News, Greg Stohr at Bloomberg, Lyle Denniston at Constitution Daily, Mark Joseph Stern at Slate, Adam Liptak at The New York Times, Mark Walsh at Education Week, BBC News, Zhai Yun Tan at The Christian Science Monitor, Ruthann Robson at the Constitutional Law Prof Blog, and German Lopez at Vox. Leland Beck at Federal Regulations Advisor takes a look at the administrative law issues in the case.

The court added four other cases to its docket on Friday, as Amy Howe reports for this blog. Coverage of one case, Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment, comes from Lawrence Hurley at Reuters, who notes that this “case is not the first the high court has taken up on social media and free speech.” At the Constititutional Law Prof Blog, Ruthann Robson also discusses Packingham, predicting that the court will find the North Carolina statute unconstitutional. At ImmigrationProfBlog, Kevin Johnson discusses the grant in Esquivel-Quintana v. Lynch, a criminal immigration removal case that “raises issues about the rule of lenity applicable in the interpretation of the criminal laws and … Chevron deference, a generally applicable administrative law doctrine that permeates virtually all of modern administrative law’; he also surveys the other immigration cases on the court’s docket this term. At his eponymous blog, Ross Runkel looks at Kindred Nursing Centers Limited Partnership v. Clark, which asks whether “the Federal Arbitration Act preempts a state-law contract rule that requires a power of attorney to expressly refer to arbitration agreements before an attorney-in-fact can bind her principal to an arbitration agreement.”

Coverage of and commentary on the confirmation impasse continues. In The Huffington Post, Sam Stein and Amanda Turkel report that Democratic vice-presidential candidate Tim Kaine has indicated that “his party would move to eliminate rules allowing a minority of Senate Republicans to block Supreme Court nominees should they refuse to consider those nominated by a future president Hillary Clinton.” Additional coverage of Kaine’s statements comes from Jordain Carney at The Hill.

In an op-ed in The Hill, Thomas Berry argues that the “almost apocalyptic choice” facing Senate Republicans,” between confirming “a lifetime appointment to the Supreme Court that could shift its ideological balance indefinitely” and continuing “to be labeled as an obstructionist party keeping a ninth vote off the Court,” is “a false dilemma,” and that “Congress should pass a bill allowing the president, when a seat on the Supreme Court has been vacant for more than six months, to immediately assign either a circuit court judge or a retired Supreme Court justice to sit on the Supreme Court by designation.” At The Huffington Post, Nan Aron weighs in on the confirmation impasse, noting that the GOP’s “promise to ‘let the voters speak’ is increasingly looking like one of the many whoppers delivered in the exceptionally awful campaign season about to end.” A different perspective on the vacancy comes from Adam Feldman at Empirical SCOTUS, who “looks at the decision types with Courts composed of other than nine justices by Court era” and concludes that “there appears to be nothing inherently wrong with the notion of a Court of a different size than nine,” although he points out that, historically, “when the number of justices on the Court has been set to any number other than nine, this decision was made by Congress through legislation.”


  • At Crime and Consequences, Kent Scheidegger criticizes an editorial in the Los Angeles Times that he says “blatantly misrepresented” a Supreme Court opinion in a 1998 death penalty case; he argues that the editorial “defamed the Court and, even worse, misled its readers on a vitally important public issue they will be voting on shortly.”
  • In The New York Times, Adam Liptak reports on recent public remarks by Justice Clarence Thomas, who observes his 25th anniversary on the court this week, observing that “Justice Thomas’s recent wide-ranging reflections help fill out a portrait of a man often reduced to caricature.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Oct. 31, 2016, 7:30 AM),