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Thursday round-up

Yesterday the court heard two hours of oral argument. The first hour featured Lee v. Tam, a First Amendment challenge to a government refusal to trademark a disparaging name. Amy Howe analyzes the argument for this blog. Also covering the oral argument in Lee v. Tam are Mark Walsh at Education Week, Daniel Fisher at Forbes, Tony Mauro at (subscription or registration required), and Robert Barnes at The Washington Post, who reports that a “majority of the Supreme Court seemed highly skeptical” “that the federal government can refuse to register all trademarks that may be disparaging, casting this as the government improperly taking sides in free speech disputes.” Commentary on the argument comes from Erica Goldberg at In a Crowded Theater and Ruthann Robson at the Constitutional Law Prof Blog. Additional coverage of the case comes from Maggie Baldridge at Constitution Daily.

In the second hour of argument, the court considered Ziglar v. Abassi (consolidated with Ashcroft v. Abassi and Hasty v. Abassi), a suit against former high-ranking federal officials stemming from detentions of Middle Eastern men in the wake of the September 11 attacks. Amy Howe has an argument analysis for this blog. Coverage of the case comes from Richard Wolf in USA Today, who reports that “the decision for the six justices remains a preliminary one: whether the Muslim immigrants’ case should be dismissed outright.” In The Atlantic, Garrett Epps argues that the case, along with Jennings v. Rodriguez, another immigrant-detention case argued earlier this term, is particularly significant in light of “the vast scale of what the new administration proposes to do in the immigration area.”

The court also issued a decision yesterday in Lightfoot v. Cendant Mortgage Corporation, holding unanimously, in an opinion by Justice Sonia Sotomayor, that Fannie Mae’s charter does not create federal jurisdiction in all cases to which the federal entity is a party. Ronald Mann analyzes the opinion for this blog.

On Tuesday, the court heard oral argument in Lynch v. Dimaya, a void-for-vagueness challenge to an immigrant-removal statute. Kevin Johnson analyzes the argument for this blog. Tuesday’s argument agenda also included Midland Funding v. Johnson, which asks whether the Federal Debt Collection Practices Act applies to stale claims filed by debt-buyers in bankruptcy court. Ronald Mann has this blog’s argument analysis. Another look at the argument comes from Daniel Fisher in Forbes, who concludes that “it looks like the bill collectors will continue to be able to press their claims in bankruptcy court without fear of being clobbered with an FDCPA claim.”


  • At the National Conference of State Legislatures Blog, Lisa Soronen discusses the court’s recent decision to review National Association of Manufacturers v. Department of Defense, which asks whether challenges to the Environmental Protection Agency’s definition of the “waters of the United States” must be brought in federal district court or in a federal court of appeals, observing that the “Supreme Court has likely stepped in to resolve this dispute because it is a waste of judicial resources for federal courts of appeals to decide whether WOTUS regulations are lawful if they don’t have the jurisdiction to make this determination.”
  • At Reason, Damon Root looks at Justice Sonia Sotomayor’s record in cases involving law enforcement, arguing that “over the past seven years, she has distinguished herself as one of the Supreme Court’s most outspoken critics of police misconduct and one of its most consistent champions of the Fourth Amendment.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that “Jones Day partner Noel Francisco is leaving the firm amid speculation that he could soon become solicitor general or principal deputy solicitor general in the Trump administration.”
  • At More Soft Money Hard Law, Bob Bauer weighs in on the pending cert petition in Independence Institute v. Federal Election Commission, in which a think tank is challenging an FEC donor-disclosure requirement, observing that the issue in the case “is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment.”
  • At Mayer Brown’s Class Defense Blog, Evan Tager and others discuss the court’s recent decision to review three consolidated cases that raise the question whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act.
  • At the Sports Law Blog, Daniel Wallach handicaps the chances that the court will grant review in in Christie v. National Collegiate Athletic Association, a case that turns on whether a federal statute can prevent New Jersey from repealing a ban on sports betting, observing that because “there has not been a single instance since the beginning of 2016 (covering 20 CVSG’s) in which the Supreme Court has not followed the recommendation of the Solicitor General,” “Donald Trump could very well be deciding the future of New Jersey sports betting with his imminent solicitor general appointment.”
  • Advice and Consent (podcast) discusses two short-listers for the vacant Supreme Court seat, William Pryor and Steven Colloton, as well as the possibility that Donald Trump will choose a “wild card.”
  • In an op-ed for The New York Times, Linda Greenhouse looks at a cert petition filed last week that “asks the justices to decide the major issue left open by the Heller decision: whether the Second Amendment protects the right to carry a gun outside the home,” maintaining that the “mere fact that the appeal is pending is bound to play a role during the confirmation hearings for the next Supreme Court nominee.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jan. 19, 2017, 7:44 AM),