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Thursday round-up

Yesterday the court heard oral argument in Venezuela v. Helmerich & Payne International, a case involving pleading standards for expropriation cases against foreign governments filed in U.S. courts. Amy Howe has an analysis of the argument for this blog. Lyle Denniston covers the argument for his eponymous blog, observing that what “started out as, and sometimes seemed likely to be obscured by, an arcane inquiry into the fine detail of court jurisdiction turned later into almost a foreign relations management seminar, exploring the folly or the wisdom of haling a sovereign nation before the bar of a U.S. court.”

On Tuesday, the court heard oral argument in SCA Hygiene Products v. First Quality Baby Products, which asks whether the common law defense of laches applies to a patent infringement suit for damages brought within the statutory limitations period. Ronald Mann analyzes the argument for this blog. Monday’s argument agenda also included State Farm Fire & Casualty Co. v. United States ex rel Rigsby, which involves the effect on a lawsuit under the False Claims Act of a violation of the act’s seal requirement. At Law 360 and The Employment Law Group, R. Scott Oswald assesses the argument, concluding that “the eight justices of the U.S. Supreme Court seemed loath to adopt any bright-line rule — a recognition of what Justice Stephen Breyer called the ‘vast range’ of scenarios and possible outcomes of such violations.”

At the Associated Press, Mary Clare Jalonick reports on the prospect of a blockade by Republican senators of Supreme Court nominations if Hillary Clinton wins the election, surveying the declared positions of some of the major players in the controversy. Additional coverage comes from Steve Benen at MSNBC, and a podcast at Bloomberg features more discussion of the issue.  At The Huffington Post, Cristian Farias reports that the Heritage Foundation has begun raising money to fund “a game plan of sorts that builds on what many Republican senators have been signaling of late: that it would be perfectly acceptable to leave the Supreme Court and other courts short-handed for as long as needed.” At Talking Points Memo, Lauren Fox reports that Sen. John Cornyn, the majority whip, would not “’speculate’” in an interview on Tuesday “about what Republicans should do if Clinton is elected and in a position to appoint Supreme Court justices.” At The Washington Post, Amber Phillips observes that although “Senate Republicans certainly could decide to block a Clinton pick,” they will “have to talk themselves out of a tight corner to do it.” At the History News Network, Ray Raphael surveys the provisions of the Constitution that pertain to the Supreme Court confirmation process.

Commentary critical of the Republican blockade comes from the editorial boards of the Las Vegas Review-Journal, which deems the move “shortsighted on many levels” and the Waco Tribune-Herald, which argues that besides “making a lie of Republicans’ original rationale last spring, this latest suggestion would introduce a true constitutional crisis.” Commentary focusing on North Carolina Sen. Richard Burr’s endorsement of a blockade comes from the editorial boards of the Capitol Broadcasting Company, the Raleigh News & Observer, and the Greensboro News & Record.

In an op-ed in The Week, Paul Waldman attributes the Republican groundswell of opposition to any Hillary Clinton court nominees to “the idea that a Democrat could not possibly be a legitimate president,” which has “spread from the hard-right to become mainstream thought within the broader right.” At Salon, Gary Legum argues that conservative political commentators are attempting to impose a “veneer of intellectualism” on “the delegitimization of the opposition party, no matter the results of a fair and open election,” which “is pure politics.” More commentary decrying the prospect of a continued Republican blockade comes from Heather Digby Parton at Salon, Shannon Argueta at The Daily Banter, and Doktor Zoom at Wonkette.


  • At Fox13 Salt Lake City, Ben Winslow reports that the court “has signaled that it may be interested in taking up Utah’s historic ban on polygamy,” asking the “Utah Attorney General’s Office to file a formal response to a petition for certiorari by reality TV polygamist Kody Brown and his wives,” and that if the court “grants the petition, it would be the first time in more than 100 years that it has taken up a case on plural marriage.”
  • At Supreme Court Brief (subscription required), Marcia Coyle reports on Monday’s decision in Tatum v. Arizona, one of five Arizona cases challenging life-without-parole sentences of juvenile offenders sent back to the state courts for reconsideration, noting that the decision, in which Justice Sonia Sotomayor wrote a concurrence and Justice Samuel Alito, joined by Justice Clarence Thomas, a dissent, crystallizes a tension between these justices “over life sentences for juvenile offenders” that is “rooted in just how far to apply the court’s rulings that have limited those sentences.”
  • At Think Progress, Alice Ollstein takes note of the court’s refusal this week to grant the request of an Ohio homeless coalition for emergency relief from enforcement of an Ohio law invalidating provisional ballots that contain errors in their informational sections, maintaining that since “Ohio leads the nation in provisional ballots and its provisional voters tend to be Democrats concentrated in the state’s urban centers, this week’s ruling could decide the presidential election.”
  • At his eponymous blog, Ross Runkel discusses National Labor Relations Board v. SW General, Inc., a case on next Monday’s argument agenda that involves the president’s power to make temporary appointments to Senate-confirmed executive branch positions, observing that “many officials in other government agencies have served in ‘acting’ positions in situations quite similar to the one involved in this case, so the ripple effect of the Supreme Court’s decision will be felt in many other agencies.”
  • At Supreme Court Brief (subscription required), Tony Mauro reports on an appearance by Justice Elena Kagan at a public interest law career fair, during which Kagan confided that she “went to law school for all the wrong reasons,” advised that “the best opportunities are the ones that you didn’t expect,” stressed the value of being a good listener “on the court when we’re all … trying to figure out a way to reach consensus where we can or just to figure out where the lines of difference are,” and remarked that “it’s a serious thing” when the eight-member court can’t reach agreement on a case.
  • At Empirical SCOTUS, Adam Feldman looks at statistics from this week’s oral arguments, focusing on the gender balance among the justices and attorneys, and noting that at Wednesday’s argument, which featured three female advocates, “accounting for Justice Thomas’ regular silence at oral argument, the gender breakdown of speakers … was six women to four men for the first time in the Court’s history.”
  • Bloomberg’s Cases and Controversies podcast features a discussion of how cracks “in the deference that courts usually give to Congress in the immigration arena” “might affect two immigration cases before the U.S. Supreme Court this term.”
  • New York University School of Law’s Immigrant Rights Clinic and other community groups have teamed up to create a website, Prolonged Detention Stories, that contains an annotated version, with links to supporting photographs, videos, audio, and other material, of a “friend of the court” brief the groups have filed in Jennings v. Rodriguez, a case to be argued later this term that asks whether immigrants facing deportation who are subjected to prolonged detention have a right to a bail hearing.

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Nov. 3, 2016, 7:33 AM),