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Thursday round-up

Yesterday the court heard oral argument in Lynch v. Morales-Santana, 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 on whether the mother or the father was a U.S. citizen. Amy Howe analyzes the argument for this blog. Another look at the argument comes from Martha Davis at the Human Rights at Home Blog, who observes that right “out of the box, the majority of the justices seemed ready to find that the discriminatory law violated the equal protection clause.” Mark Walsh provides a “view” from the courtroom for this blog.

On Tuesday, the court heard argument in two consolidated cases, Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami, which ask whether cities can sue banks under the federal Fair Housing Act for predatory lending practices. At Constitution Daily, Lyle Denniston reports on the argument, concluding that “the Justices left a clear impression that the cities could be the winners – in one way or another, either in a major or a more limited way.” Tuesday also featured an oral argument in Lightfoot v. Cendant Mortgage Corporation, which asks whether Fannie Mae’s charter confers federal jurisdiction over cases in which Fannie Mae is a party. Ronald Mann analyzes the argument for this blog.

Coverage of the implications for the court of Donald Trump’s victory on Tuesday, and the Republicans’ concomitant retention of their Senate majority, comes from Daniel Fisher at Forbes, who observes that “the court will almost certainly have a conservative majority for years to come,” and that as a result, challenges “to regulation by administrative fiat, class-action lawsuits and restrictions on property use will find a more hospitable court, while laws restricting abortion and promoting the rights of religious organizations will likely stand a better chance of surviving constitutional review.” Additional coverage comes from David Savage at the Los Angeles Times, who writes that “the court’s ideological balance should remain largely as it has been for the past decade, with Justice Anthony M. Kennedy holding the deciding vote in the court’s biggest cases.” At NPR, Nina Totenberg provides another report on the effects of Trump’s victory on the court’s ideological balance. In her column in The New York Times, Linda Greenhouse observes that “Chief Justice Roberts heads a court that a harsh political spotlight has rendered too easy to dismiss as just another political branch of government, its members just politicians in robes,” and cautions that “he needs to make it clear that the Roberts court is not a tool of partisan politics.”

At Jost on Justice, Ken Jost weighs in on the election, noting that  “the Democrats’ basic premise that Republicans would pay a price for obstructing President Obama’s nomination of veteran federal appeals court judge Merrick Garland for the high court was proven to be wrong, flatly wrong.” A report on the success of the GOP’s strategy comes from Nina Totenberg at NPR. Steven Mazie at The Economist predicts that Senate Republicans will dissolve the filibuster so that Trump can “have his way with the empty chair,” and speculates that Tuesday’s “vote may have changed retirement plans for Ruth Bader Ginsburg, 83 and Stephen Breyer, 78, the elder liberals on a court that is destined to swing to the right.” At his eponymous blog, Lyle Denniston suggests that “the transition to a truly different Court may not come until after the congressional elections in 2018, or even later, although that depends on the health of the more senior Justices now serving.” At The National Law Journal (subscription or registration required), Tony Mauro agrees that changes in the direction of the court will come slowly, noting that it “is no accident that a recurring architectural motif at the Supreme Court’s building is the slow-moving tortoise,” and that the “court prides itself on being the one branch of government that does not respond to every change blowing in the wind.”


  • At Election Law Blog, Rick Hasen notes that Justice Ruth Bader Ginsburg “sported her dissent jabot,” on the bench at oral argument on Wednesday, “in a subtle critique of Trump,” but calls the gesture “too little and too late,” opining that Ginsburg “badly miscalculated in not resigning early in Obama’s second term to give him a chance to fill that seat with someone younger.”
  • The Northwestern Law Review Online has compiled overviews of Donald Trump’s potential Supreme Court nominees, including descriptions of and links to their notable opinions, speeches, and legislation; the compilation will be updated through Inauguration Day.
  • At Empirical SCOTUS, Adam Feldman looks at the justices’ behavior during recent oral arguments and finds “subtle signs from the past few days providing support for the view that the Justices and particularly the Chief Justice feel some relief” as the election season has drawn to a close.

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Nov. 10, 2016, 7:38 AM),