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Thursday round-up

Yesterday, the court heard oral argument in Jennings v. Rodriguez, a class-action due-process challenge to the prolonged detention of immigrants. Adam Liptak reports on the argument in The New York Times, noting that the number of detainees is “likely to swell” if Donald Trump “follows through on his pledge to deport millions of unauthorized immigrants.” Additional coverage comes from Jordan Rudner in The Dallas Morning News, who notes that if “the justices rule in favor of the immigrant class, detained immigrants in Texas would be granted individual bond hearings, shortly after arriving in detention centers,” and Nina Totenberg at NPR, who reports that the justices “appeared closely divided” and, as “all the justices wrestled with multiple, and sometimes conflicting, statutory provisions,” “the argument splayed out into something of a mess.” At his eponymous blog, Lyle Denniston also analyzes the argument in Jennings, concluding that the case presents the justices with the kind of constitutional avoidance “dilemma” created when “a law has a high potential for violating the Constitution, but there may not be a Supreme Court majority to think up a way to save the law by giving it a new meaning.”

On Tuesday, the court’s argument docket featured Moore v. Texas, in which the justices have been asked to decide whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Coverage of the argument comes from Lawrence Hurley for Reuters, who notes that “the justices, equally divided between liberals and conservatives, appeared likely to rule for Moore,” with Justice Anthony Kennedy “likely to be the key vote,” and Greg Stohr at Bloomberg, who observes that “Kennedy joined the court’s liberal wing in suggesting that the state is improperly letting people be executed even though they are disabled under what he called an ‘almost uniform medical consensus.’” Lincoln Caplan also looks at Moore in The New Yorker, observing that “Texas has been responsible for more than a third of the country’s executions” since the Supreme Court reinstated the death penalty in 1976, largely because of “the state’s unique and grudging approach in cases where the defendant claims intellectual disability.” At the Sentencing Law and Policy blog, Douglas Berman wonders “how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.”

The court also issued its first merits opinion of the term on Tuesday, in Bravo-Fernandez v. United States. The justices held unanimously that the issue-preclusion component of the double jeopardy clause does not bar retrial of defendants whose previous trial ended in inconsistent jury verdicts of acquittal and conviction, when the convictions were later vacated for reasons unrelated to the inconsistency. Coverage of the decision comes from Lawrence Hurley for Reuters.

At Reason’s Hit and Run blog, Damon Root observes that Judge William Pryor, who is on Donald Trump’s list of potential Supreme Court nominees, is a proponent of “judicial deference,” “the idea that because the judiciary is the least democratic branch of government, judges owe extra respect—or deference—to the actions and decisions of the elected branches of government”; this “overly deferential approach,” he warns, “means that the courts are supposed to tip the scales in favor of the government in the vast majority of cases.” At Bloomberg Law, Patrick Gregory examines the record of another Trump short-lister, Justice Joan Larsen of the Michigan Supreme Court, remarking that although she has been on the bench for only a year, “the former Scalia clerk has spent her career considering the type of issues that could come before the court, including constitutional law, statutory interpretation, separation of powers and criminal law.”


  • In Supreme Court Brief (subscription required), Tony Mauro reports that the “Supreme Court is getting fed up with lawyers who pile extra issues and arguments onto cases that were narrow when the justices first decided to grant review,” noting that twice “in the last month, justices scolded veteran advocates for deviating from or inflating the questions they had asked the court to answer in their cert petitions.”
  • At Constitution Daily, Scott Bomboy looks at the Supreme Court cases establishing that flag-burning is protected under the First Amendment, noting that the “decisions remain controversial to the present day,” but that for “the incoming President Trump, the only likely option short of a constitutional amendment would be a change of heart at the Supreme Court.”
  • At the I-CONnect blog, Brian Christopher Jones compares Justice Ruth Bader Ginsburg’s criticisms of then-presidential candidate Donald Trump last summer to recent remarks by Lady Hale, the Deputy President of the Supreme Court of the United Kingdom, about an impending case involving Brexit, noting that both “of these influential and widely respected justices have recently tested the limits of judicial speech through provocative and ill-timed statements.”
  • At Lawfare, Adam Klein highlights “an underappreciated aspect” of the legacy of the late Justice Antonin Scalia — “his interest in—indeed, his enthusiasm for—foreign and comparative law.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Dec. 1, 2016, 7:21 AM),