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Wednesday round-up

This morning the court will hear 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 whether the mother or the father was a U.S. citizen. Amy Howe previewed the case for this blog; Karen Ojeda and Scott Cohen supply a preview for Cornell University Law School’s Legal Information Institute.

Yesterday 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 involve the scope of the federal Fair Housing Act. Amy Howe analyzes the argument for this blog; more argument coverage comes from Adam Liptak in The New York Times and Daniel Fisher in Forbes. Amelia Thomson-DeVeaux at FiveThirtyEight also provides coverage; she notes that “the heart of the case is an empirical challenge,” involving whether the cities can “prove that they were directly and measurably harmed by the banks’ discriminatory lending practices,” and that “housing scholars … say that although it’s difficult at this stage to assess the strength of Miami’s particular case, there is a strong empirical argument for allowing cities to sue.” Commentary comes from Brian Frazelle at Alliance for Justice’s Justice Watch blog, who maintains that “racial division remains a stark reality in our nation, and one culprit is the persistence of rampant segregation in housing,” and that what “the Court does in these cases could have significant consequences for the effective enforcement of the key law that was adopted to address that problem.” In a column for Bloomberg, Noah Feldman argues that the cases “are worth watching closely, as a bellwether of where the court may go in the near future — depending, of course, on what happens Tuesday.”

At, Eric Heisig reports on the court’s denial Monday of a request by the Ohio Democratic Party to reinstate a district court order barring Donald Trump’s campaign from engaging in voter intimidation, noting that the court’s “short order included a statement from Justice Ruth Bader Ginsburg that said she voted to not intervene because Ohio’s law already outlaws voter intimidation.” Additional coverage comes from Lyle Denniston at Constitution Daily. Commentary on Ginsburg’s statement comes from Mark Joseph Stern at Slate, who suggests that perhaps “the Notorious RBG couldn’t let this election end without one last jab at the man whose lawlessness she so despises.” In a column in The Washington Post, Jonathan Adler criticizes as “unethical” Ginsburg’s participation “in a case in which she repeatedly disparaged one of the parties and expressed a strong preference for that party’s defeat in the very election that was the subject of the case.”


  • At Empirical SCOTUS, Adam Feldman looks “at the current state of federal judicial vacancies” and concludes that the “current Supreme Court vacancy speaks to a larger problem with the federal judiciary – that is, Congressional willingness to leave federal court seats vacant,” noting that the “vacancies affect judicial business at all levels and are at least to some extent a product of Congressional gridlock.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Nov. 9, 2016, 5:53 AM),