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Tuesday round-up

In The Washington Post, Robert Barnes answers three common questions about the Supreme Court in a Donald Trump administration, noting, among other things, that judicial ethics experts say “federal laws would not prohibit Trump from nominating” his sister to the court. At Empirical SCOTUS, Adam Feldman looks at the records of past Supreme Court justices with experience only on state courts and federal trial courts, and concludes that “Trump may well feel most secure with the appointment of a prior federal court of appeals judge,” noting that “there appears little predictive capacity for how a judge will decide on the Supreme Court based on non-federal court of appeals lower court experience.”


  • In the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Frank Garrison discuss Expressions Hair Design v. Schneiderman, a First Amendment challenge to a New York law that allows merchants to give discounts to customers who pay in cash, but criminalizes the imposition of surcharges for customers who use credit cards, arguing that “the Framers sought to protect speech from the type of cronyism and rent-seeking the New York’s no-surcharge law manifests.”
  • In Ballard Spahr’s CFPB Monitor, Barbara Mishkin discusses a pending cert petition in a case asserting a recess appointment defense to an enforcement action by the Consumer Financial Protection Bureau.
  • In an op-ed in Time, Tim Shriver, the chairman of the Special Olympics, weighs in on Moore v. Texas, a case to be argued at the end of the month that asks whether Texas can rely on an outdated standard in determining whether an inmate’s intellectual disability precludes him from being executed, noting that the “inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be ‘good’ at anything,” and that in “this case, fiction and stigma trumped science and the Constitution.”
  • At Notice and Comment, David Feder discusses the jurisprudence of Judge Neil Gorsuch, who is on Donald Trump’s list of potential Supreme Court nominees, highlighting “three of Judge Gorsuch’s recent and noteworthy administrative law opinions, with an eye toward the rigorous originalism that motivated them.”
  • At Stanford Law School’s Legal Aggregate blog, David Alan Slansky recoils at the idea that policymakers debating possible responses to the threat of terrorism have described the court’s notorious decision in Korematsu v. United States, which upheld the internment of Japanese-Americans during World War II, “as ‘good law,’ or ‘technically still on the books,’’’ stating: “No decent person can view the internment as any kind of ‘precedent’ for acceptable government behavior. And no passable lawyer treats the Supreme Court’s decision in Korematsu as good law.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 22, 2016, 7:33 AM),