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Tuesday round-up

Today the court will hear oral arguments in two cases. First up is 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 requirements; Ronald Mann previewed the case for this blog. Another preview comes from Andrew Maury and Nicholas Halliburton for Cornell’s Legal Information Institute. The second case on the argument docket is 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 provided this blog’s preview; Dara Brown and Jaeeun Shin preview the case for Cornell.

Yesterday, the court sent five Arizona cases challenging life-without-parole sentences of juvenile offenders back to the state courts for reconsideration in light of last term’s decision in Montgomery v. Louisiana. Justice Sonia Sotomayor wrote an opinion concurring in the decision; Justice Alito, joined by Justice Thomas, dissented. Amy Howe reports on the ruling for this blog. Additional coverage comes from Howard Fischer at At ACS, Robert Smith discusses the decision, noting that it “strongly suggests that five justices on the Court” believe that a sentencer is required “to find that a juvenile is permanently incorrigible before imposing a LWOP sentence.”

Coverage of yesterday’s 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, comes from Amy Howe for this blog. Additional coverage comes from Nina Totenberg at NPR, who notes that both sides faced skeptical questioning at the argument and that “when the dust settled, it was unclear in which direction the court was heading,” and from Mark Walsh at Education Week, who reports that by “the end of the hourlong argument,” “it appeared that the court was leaning in the direction of the family’s view.”

Yesterday, the court also heard argument in Star Athletica v. Varsity Brands, which involves the use of copyright to protect functional objects – in this case, the designs on a cheerleading uniform. Ronald Mann analyzes the argument for this blog. Additional coverage comes from Daniel Fisher at Forbes, who observes that “a seemingly frivolous argument about cheerleader uniforms” “could have huge implications for the fashion industry,” and Mark Sherman at AP, who notes that “the justices and the companies’ lawyers invoked Dutch painter Piet Mondrian, French artist Marcel Duchamp, clothing designer Stella McCartney, actor Kate Winslet and gorilla suits as they tried to figure out whether the design of cheerleading uniforms can be protected under copyright law.” In an op-ed for Forbes, Peter Decherney discusses Star Athletica, suggesting that it is “more than a coincidence” that a case argued on October 31 “could determine the future of Halloween costumes”; he notes that the case offers the justices an “opportunity to bring some order to the chaos of fashion copyright,” hopes that “they will be able to do it without sacrificing the important function of play, fantasy, and dressing up.”  NYU Law News notes that three of the law school’s intellectual-property professors “filed amicus briefs in the case, each taking a different perspective on the question.” A Federalist Society video discussing the issues in the case is available here.

In USA Today, Richard Wolf reports that Gavin Grimm, the transgender student whose request to use the boys’ bathroom at his high school has ended up at the Supreme Court, in Gloucester County School Board v. G.G., which the court agreed last week to hear, says that he “is eager to fight and win at the Supreme Court ‘to make sure that trans kids that come after me do not have to go through this experience.’” At Dorf on Law, Michael Dorf posits that, contrary to the view of his fellow “law nerds,” who think “the public will view the case as fundamentally about trans equality, but in fact it’s mostly about administrative law,” “the uninformed public” may be “mostly right and the law nerds … mostly wrong”; if so, “then the administrative deference issue is secondary: the core question is whether anti-trans discrimination is sex discrimination.” And at his eponymous blog, Ross Runkel advises employment lawyers to “keep an eye on” the case, because the court’s interpretation of language in “Title IX, which prohibits schools that receive federal funding from discriminating on the basis of ‘sex,’” may have implications for cases involving Title VII, which “prohibits employers from discriminating on the basis of ‘sex.’”

For The New Republic, David Sarasohn assesses the possibility that a Democratic victory in the presidential election, coupled with a Democratic majority in the Senate, would lead to the abolition of filibusters for Supreme Court nominations; if, he observes, “banning the filibuster on federal district and appeals courts was the nuclear option, banning it on Supreme Court nominations would be the hydrogen bomb.” At the Federalist Society, Evan Bernick argues that, contrary to recent statements by Senate Republicans and conservative commentators, shrinking the size of the court will not reduce judicial activism; he maintains that there is “no inherent connection between the number of justices and activism, however defined,” and that we need, not “a smaller, more timid Court,” but rather “justices who are both faithful to the Constitution and unafraid to challenge a jurisprudential status quo that in many and consequential contexts has little to do with the Constitution.” A different objection to the smaller-court idea comes from David Boyle at casetext, who argues that “to waste time making spooky arguments that one branch of the Government can whack another at will, may be wackier than anything else you see this Halloween—especially when such arguments may not have a ghost of a chance of withstanding serious analysis.”

For BBC News, Rajini Vaidyanathan discusses how the next president will affect the Supreme Court (video). At, Thom Fain compares the potential effects of a Trump or Clinton presidency on the court but notes that many “from both sides of the political aisle are suggesting that the SCOTUS will remain at just eight justices for the foreseeable future.” Another look at how the election may shape the court comes from Steven Mazie at The Economist, who observes that “the 113th justice is certain to swing the court one way or another,” but remarks that even if “the Senate deigns to consider and confirm a nominee,” changes will not occur overnight, because the court is “a slow-moving institution empowered only to decide cases that work their way up through the lower courts.”

In The Washington Post, Robert Barnes surveys reactions to Justice Clarence Thomas’ 25th anniversary on the court, observing that “the unofficial title of the court’s most polarizing justice seems his to keep regardless of tenure.” At Dorf on Law, Eric Segall maintains that the conventional wisdom that Thomas is a pure originalist is a “myth,” arguing that “Thomas consistently reaches conservative results regardless of whether those results can be justified by reference to the actual words of the Constitution or their original meaning.” And in the Northwestern University Law Review, RonNell Andersen Jones and Aaron Nielson have compiled and analyzed “every available question asked by Thomas as an appellate judge,” concluding that in “many key respects, Justice Thomas, the justice least likely to ask a question, is a model questioner.”


  • At The Federalist Society, Trey Childress looks at Venezuela v. Helmerich & Payne International, a case on Wednesday’s argument calendar involving pleading standards for expropriation cases against foreign governments filed in U.S. courts, noting that this “case has the potential to be a blockbuster, as it will define when suits against foreign governments get through the courthouse door.”
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen highlights Ziglar v. Turkmen (consolidated with Ashcroft v. Turkmen and Hasty v. Turkmen), suits against former high-ranking federal officials stemming from detentions in the wake of the September 11 attacks, noting that these “cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the ‘established law’ at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.”
  • At The National Law Journal, Arthur Bryant discusses several pending cert petitions, including National Labor Relations Board v. Murphy Oil USA, that ask whether employers can “use mandatory arbitration clauses in employment contracts to ban workers’ collective and class actions,” noting that even if “none of these cases is heard, more are on their way.”

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, Tuesday round-up, SCOTUSblog (Nov. 1, 2016, 6:49 AM),