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Wednesday round-up

Today the court will hear 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 previewed the case for this blog. Another preview comes from Alla Khodykina and Rachael Hancock at Cornell’s Legal Information Institute.

Yesterday, the court heard arguments in 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. Ronald Mann has this blog’s analysis of the argument in State Farm; additional coverage comes from Marcia Coyle at The National Law Journal (subscription or registration required).

On Monday, the court heard 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, and 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. Constitution Daily features a discussion both cases on the court’s Monday  agenda. Coverage of both arguments comes from Robert Barnes at The Washington Post, who notes that “on Monday, one case was about a little girl and her goldendoodle service dog named Wonder, and the other about the ‘stripes, chevrons and zig-zags’ that make a cheerleader’s uniform distinctive from, say, a little black dress.” More coverage of Fry comes from Jim Gerl at the Special Education Law Blog. Coverage of the argument in Star Athletica comes from Lyle Denniston at Constitution Daily, who observes that “the entire fashion industry is keenly interested” in the case, “because the court may wind up sorting out who gets to exploit original creations not just in sportswear, but in high-class frocks or gowns and original design wear of all kinds,” and that “what seemed to fascinate the Justices the most was the message that clothing sends.”

In The Economist, Steven Mazie looks at Gloucester County School Board v. G.G., which stems from a request by a transgender student to use the boys’ bathroom at his high school; he notes that the case “puts the next frontier of equality jurisprudence on centre stage a year and a half after same-sex couples gained the right to marry.” Another look at the case comes from Margaret Drew in the Human Rights at Home Blog, who maintains that the “case will be significant in the LGBT journey to assign sexual identity suspect classification status.”

As the election nears, coverage of and commentary on the effects of the outcome on the court abounds. At Talking Points Memo, Lauren Fox reports that Republican Sen. Richard Burr vowed not to confirm any Supreme Court nominations if Hillary Clinton is elected, noting that “Burr’s comments about a permanent blockade of the Supreme Court echo that of other lawmakers.” Additional coverage of Burr’s remarks comes from Mark Barrett at the Asheville Citizen-Times. In The Washington Post, Christopher Ingraham reports that “an extended vacancy like the one Burr is proposing is absolutely without precedent in the history of the U.S. Supreme Court.”

At The Atlantic, David Graham looks at the implications of this potential Republican strategy, concluding that the “United States could end up ungovernable except under one-party rule.” At Bloomberg, Steven Dennis and Sahil Kapur also assess post-election prospects for current and future court vacancies, noting that “control of the Senate is on a knife edge in the polls, with a half-dozen races considered tossups.” Commentary critical of the Republicans’ stance comes from Ian Millhiser at Think Progress, Jonathan Tait at New York, and the editorial board of the The Charlotte Observer. At his eponymous blog, Lyle Denniston reports that in a brief filed in federal district court in the District of Columbia on Monday, the “U.S. Senate and two of its key Republican leaders, relying on an array of constitutional claims, has told a federal judge that the courts must stay out of the political feud over the current vacancy on the Supreme Court.”


  • The World and Everything in It (podcast) features a discussion of Samsung Electronics Co. v. Apple, the design patent infringement case the court heard last month.
  • At the National Conference of State Legislatures’ blog, Lisa Soronen discusses Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment, noting that the court “keeps on accepting First Amendment cases,” which “does not bode well for state and local governments, like North Carolina in this case.”
  • In an op-ed in The Detroit News, Gabe Roth laments the court’s ban on videotaping of oral arguments, arguing that the court’s “refusal to allow a majority of the American people to experience their work as it transpires demonstrates a level of contempt for public discourse that is confounding.”
  • At the Council of State Governments’ Knowledge Center blog, Lisa Soronen examines the court’s recent dismissal for mootness of Ivy v. Morath, in which “the Supreme Court was supposed to decide when state and local governments are responsible for ensuring that a private actor complies with the ADA”; she predicts that “the Court will accept another case raising this issue soon.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Nov. 2, 2016, 7:56 AM),