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Tuesday round-up

This morning the court will hear two hours of oral argument. First on the schedule are two consolidated cases, Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami, which involve the scope of the federal Fair Housing Act. Amy Howe previewed the cases for this blog. Laurel Hopkins and Eugene Temchenko supply a preview for Cornell University Law School’s Legal Information Institute. Additional coverage comes from Nina Totenberg at NPR and from Robert Barnes at The Washington Post, who notes that Miami’s “leaders have embarked on a novel and aggressive legal strategy to recoup losses” stemming from the housing collapse of 2008 “from the big banks they say created the crisis with discriminatory and predatory lending practices.” Next up is Lightfoot v. Cendant Mortgage Corporation, which asks whether Fannie Mae’s charter confers federal jurisdiction over cases in which Fannie Mae is a party, and which Ronald Mann previewed for this blog. Kara Goad and Elizabeth Sullivan previewed the case for Cornell.

Yesterday, the court heard 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 analyzes the argument for this blog. At his eponymous blog, Ross Runkel also reviews the argument, concluding that the justices may “be swayed by the NLRB’s argument – pushed hard at oral argument – that the executive branch has always interpreted the statute the way the government now wants it interpreted, and Congress has never squawked about that,” and noting that although “Congressional silence is usually a horribly weak argument, … it could be decisive in this case.” Another look at the argument comes from Garrett Epps at The Atlantic, who observes that “for one shining hour, we in the courtroom found ourselves in a world where problems can be solved, and where Congress, courts and president can all . . . just get along.”

Yesterday the court declined a request by the Ohio Democratic Party to reinstate a district court order barring Donald Trump’s campaign from engaging in voter intimidation. Amy Howe has this blog’s coverage. Additional coverage comes from Adam Liptak at The New York Times.

At Reuters, Lawrence Hurley reports that several “intriguing scenarios could unfold after Tuesday’s U.S. election to break the deadlock over filling a Supreme Court vacancy that has provoked a bitter nine-month standoff between President Barack Obama and Senate Republicans.” Burgess Everett reports in Politico that Republican Sen. David Perdue has called “plans for a unilateral blockade” of Supreme Court nominations if Hillary Clinton is elected tomorrow a “’dereliction of duty.’”At Slate, Dahlia Lithwick breaks down the Senate Republicans who have spoken out recently about the possibility of a blockade, into “two distinct teams,” listing the members of what she terms “Team Obstruction” and “Team Responsible Governance,” and hoping that the latter “team wins the day.” At Think Progress, Ian Millhiser contends that a blockade would precipitate a “constitutional crisis.” But in an op-ed in The Hill, Chris Bryant contends that an eight-member court offers advantages, observing that “the Justices are obliged to cooperate and driven to rule on narrow grounds, disposing of the actual cases that come before them while refraining from sweeping pronouncements,” and suggesting that this enforced moderation promises “in turn to diminish, over time, the intense divisiveness currently characterizing Supreme Court nominations.”

In a New York Daily News op-ed, Rick Hasen argues that the election constitutes “an all-out ideological war over the future of the Supreme Court.” Additional commentary on the court and the election comes from the editorial board of The New York Times, which argues that in “the next Congress, regardless of who wins on Tuesday, the very survival of the court as an independent body will be at stake.” More pleas to keep the Supreme Court nomination process free from partisan politics come from the editorial boards of the Chicago Sun-Times and the Boston Globe, and the Walla-Walla Union-Bulletin. In an op-ed for Bloomberg, Jonathan Bernstein argues that if “there’s ever any hope for effective conservative government in the U.S., the first job is to reclaim the Republican Party for conservatives who actually try to do the hard work of governing.”


  • At Mimesis Law, Andrew King looks at Packingham v. North Carolina, an upcoming case that asks whether a ban on social media use by sex offenders violates the First Amendment, arguing that “there is no wisdom in imposing on a certain class of offenders a social media death penalty.”
  • The World and Everything In It (podcast) features a discussion of two cases argued last week, 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, and Star Athletica v. Varsity Brands, which involves the use of copyright to protect functional objects.
  • At The Council of State Governments’ Knowledge Center blog, Lisa Soronen discusses Coventry Health Care of Missouri, Inc. v. Nevils, a case the court agreed last week to review that asks whether a federal statute governing federal employee health insurance benefits pre-empts Missouri’s anti-subrogation law, observing that implicit “in that question is whether Chevron deference applies to an agency’s regulation construing the scope of a statute’s express-preemption provision.”
  • In an op-ed in The National Law Journal (subscription or registration required), John Blume weighs in on Moore v. Texas, a case to be argued in the December sitting that asks whether Texas can rely on an outdated standard in determining whether an inmate’s intellectual disability precludes him from being executed, arguing that intellectual disability “should not mean something different in Texas capital cases than it does in other death penalty jurisdictions.”
  • In an op-ed for The Brennan Center for Justice, Andrew Cohen looks at voter suppression efforts in the wake of the court’s decision in Shelby County v. Holder, arguing that no matter who wins today’s election, “the Roberts Court is largely to blame for stripping away protections we know now more than ever we still needed.”
  • At Supreme Court Brief (subscription required), Tony Mauro notes the death of E. Barrett Prettyman Jr., whom he quotes Chief Justice John Roberts as calling “’a towering member of the Supreme Court bar, arguing 19 cases before the court at a time when few lawyers argued more than a handful.’”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 8, 2016, 7:09 AM),