In The Washington Post, David Weigel reports that Sen. Ted Cruz said yesterday “that there was ‘precedent’ for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.” Additional coverage of Cruz’s remarks comes from Burgess Everett at Politico, who notes that they “could indicate a broader shift within the GOP to halt Democrats from shifting the court’s balance to the left.” Commentary comes from Howard Wasserman at PrawfsBlawg, who remarks that although comments like Cruz’s may be “all posturing, in light of recent polls,” they do “hint that a lame-duck confirmation of Merrick Garland is not in the offing.” At Constitution Daily, Scott Bomboy explores the possible effect of the threat of a Republican blockade on the Senate’s filibuster rules for Supreme Court nominations, observing that given “the recent tradition of close scrutiny of Supreme Court nominees, another ‘nuclear’ move to kill the Supreme Court nominee filibuster would be controversial.”

At The Federalist, Ilya Shapiro argues that “a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally,” and that “if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.” A contrasting view comes from Linda Greenhouse, who in her column for The New York Times remarks that “it is only by a distorted view of history” that the battle over the confirmation of Judge Robert Bork “can be said to have ushered in or authorized flat-out obstruction of a Supreme Court nomination” and points to “the dangers that lie ahead if what’s happened during this corrosive election year becomes accepted as the new normal.”

In The Christian Science Monitor, Ellen Powell reports that Justice Stephen Breyer has recently discounted concern about the prospect that a contested election might wind up in front of an eight-member Supreme Court, noting that Breyer has maintained that “the court can make decisions on highly political issues like the presidential election – even without a ninth justice to break a potential tie – because it is not itself particularly political.” The National Constitution Center recently held a panel featuring legal journalists discussing “the state of a 4-4 Supreme Court in transition” and “the differences between a Clinton Court and a Trump Court”; video of the event is here.

Briefly:

  • At The Atlantic, Garrett Epps discusses Lynch v. Morales-Santana, which will be argued the day after the election and which asks “whether Congress can discriminate against U.S. citizen fathers in awarding citizenship to foreign-born children,” observing that “immigration law is, in many ways, a constitution-free zone,” and that although “a true ‘Muslim ban’ seems unlikely” regardless of the election outcome, “a victory for Luis Morales-Santana would make it even less likely.”
  • At his eponymous blog, Ross Runkel looks at Patterson v. Raymours Furniture Company, a pending cert petition that is one of four that raise essentially the same issue as to whether class-action arbitration waivers impermissibly conflict with federal labor laws.
  • At The Columbus Dispatch, Darrel Rowland reports that the Ohio Democratic Party and groups representing the homeless have filed an emergency request asking the Supreme Court to block enforcement of “a pair of 2014 statutes requiring Ohioans to accurately complete five fields of information on requests for absentee or provisional ballots changes to Ohio’s election laws.”
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen takes a look at Expressions Hair Design v. Schneiderman, which asks “whether state ‘no-surcharge’ laws that prohibit vendors from charging more to credit-card customers but allow them to charge less to cash customers violate the First Amendment.”
  • At casetext, Carissa Hessick examines the impact on the void-for-vagueness doctrine of the court’s 2015 decision in Johnson v. United States; she highlights two cases before the court this term, Lynch v. Dimaya, a vagueness challenge to the statutory definition of a “crime of violence” under federal immigration law, and Beckles v. United States, which involves a residual clause in the federal sentencing guidelines, noting that if “the government loses those cases, then we are likely to see further challenges to laws that fall within the long shadow of Johnson.”

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Posted in Round-up

Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Oct. 27, 2016, 7:43 AM), https://www.scotusblog.com/2016/10/thursday-round-up-347/