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Monday round-up

Today the court hears oral argument in National Labor Relations Board v. SW General, Inc., a case that involves the president’s power to make temporary appointments to Senate-confirmed executive branch positions. Amy Howe previewed the case for this blog; another preview comes from Emily Rector and Kimberly Petrick at Cornell University Law School’s Legal Information Institute.

On Sunday night, the Ohio Democratic Party asked the court to add to its recent list of election-related rulings by reinstating a district court injunction that barred Donald Trump’s campaign from attempting to intimidate Ohio voters. Amy Howe has this blog’s coverage. Commentary comes from Rick Hasen at Election Law Blog, who wonders whether Justice Ruth Bader Ginsburg will express her views on the request, which, he says, might expose her to criticism “for failing to recuse in a case involving Trump.”

In another election-law ruling on Saturday, the court granted an emergency request to reinstate an Arizona law that makes it a felony to engage in “ballot-harvesting,” or the collection and delivery of early-voting ballots by anyone other than election officials, mail carriers, family members, and caregivers. Amy Howe covers the ruling for this blog. Additional coverage comes from Lyle Denniston at Constitution Daily, who notes that “the legislative sponsors of the measure argued that it was necessary to prevent voter fraud, while its “opponents said that it will fall heavily on Hispanic and Native American voters who have little transportation and no available secure mailboxes in cities or rural areas.” Coverage also comes from Bob Christie for the Associated Press, who reports that the “decision is unusual because it takes at least five votes to issue such an order,” and that  therefore “at least one of the court’s liberals agreed to allow the law to go back into effect,” and Adam Liptak at The New York Times, who observes that the “justices gave no reasons for reviving the law, but the court often views last-minute changes to election procedures with disfavor.” Commentary comes from Rick Hasen at Election Law Blog, who points out that, regardless of the merits, “this close to the election there really is a problem with this kind of ping pong of rules, for election administrators, poll workers, and voters.”

On Friday afternoon, the court added another case to its merits docket for this term. The grant came in Coventry Health Care of Missouri v. Nevils, a case asking whether the Federal Employee Health Benefits Act pre-empts state anti-subrogation laws. Amy Howe covers the grant for this blog. At his eponymous blog, Ross Runkel also takes a look at the issues in the case, as does Leland Beck at the Federal Regulations Advisor, who notes that the “issues present an opportunity for clarification of regulatory preemption, but the case might also fail on other terms.”

Last Friday, a rare meeting of the Supreme Court Bar honored the memory of the late Justice Antonin Scalia. This blog’s coverage is here. Additional coverage comes from Robert Barnes at The Washington Post, who notes that the event included “what have become familiar eulogies” to Scalia’s “writing skills and his impact on the law.”

Late last Thursday night, the court granted a stay blocking the execution of an Alabama death row inmate, with Chief Justice John Roberts providing a “courtesy fifth” vote to grant the stay while the court considers whether to review the inmate’s case. Amy Howe has this blog’s coverage.  At Bloomberg, Greg Stohr notes that Roberts’ action, coming after a similar move on the part of Justice Stephen Breyer in August in the transgender bathroom case, suggests that the court “seems to be trying to hang together as the election campaign drives the rest of the country into feuding camps,” and observes that this apparent “spirit of compromise stands in contrast to the bitter political debate over the court and its lingering vacancy.” Additional coverage comes from Lyle Denniston at Constitution Daily, who observes that “those two acts of courtesy may well send a signal that the Court is being forced to do at least some things differently because it only has eight members.” In an op-ed in The Huffington Post, Jason Steed hails the exchange of courtesies as “model behavior,” and hopes that Senate Republicans will “take the hint” and end the Supreme Court confirmation stalemate.

Coverage related to the intersection between the court and tomorrow’s election continues. At The Huffington Post, Jonathan Cohn reports that Sen. John McCain, who had appeared to walk back his initial pledge to block any Supreme Court nominees if Hillary Clinton wins tomorrow, has “returned to his original threat.” At, Tamar Hallerman reports that “Georgia’s two senators said they will consider Supreme Court nominees based on their individual merits in the new year, effectively rejecting a strategy some Republican colleagues have floated should Hillary Clinton win the presidency on Tuesday.” Additional coverage of the statement of one of those senators, Sen. Johnny Isakson, comes from Amanda Turkel in The Huffington Post. At the Associated Press, Mark Sherman assesses the prospect that a close election could wind up in 4-4 tie at the Supreme Court, noting that “it’s hard to discount any possibility, however remote, in a tight campaign that already has seen Democratic lawsuits charging voter suppression and Republican claims the election will be rigged.”


  • At his eponymous blog, William Goren breaks down last week’s oral argument in 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 with her, noting that at “its heart, this case is a procedural question, and so the ultimate resolution may not break down on strict ideological lines.”
  • At Cato at Liberty, Ilya Shapiro and others urge the court to review the cert petition filed last month on behalf of Nebraska financial advisor and tea party activist Bob Bennie, who states that government regulators retaliated against him after he criticized President Barack Obama, arguing that the current legal for determining when push-back becomes retaliation “allows the government to get away with blatant campaigns of intimidation, so long as it can convince a factfinder that the plaintiff was insufficiently ‘firm.’”
  • In The National Law Journal (subscription or registration required), Marcia Coyle reports that three “religious-affiliated, nonprofit health care systems are asking the U.S. Supreme Court to step into a multimillion-dollar battle with two plaintiffs firms that claim the pension plans of the medical networks are not exempt from federal law.”
  • At Empirical SCOTUS, Adam Feldman examines the “GVR,” the court’s practice of granting, vacating, and remanding a case for disposition by the lower court “based on the Supreme Court’s plenary decision in the related case,” observing that although “these decisions receive little public attention, they are one of the most significant ways for the Court to clear cases from its docket aside from denying them cert.”
  • At ACS, Sandra Park looks at Lynch v. Morales-Santana, a case to be argued on Wednesday that involves an equal protection challenge to a federal nationality statute that sets different standards for transmitting citizenship to a child born abroad to unmarried parents depending whether the mother or the father was a U.S. citizen, arguing that the case“presents an opportunity for the Court to acknowledge the discriminatory foundations of the law.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Nov. 7, 2016, 7:14 AM),