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Wednesday round-up

Today the court will hear oral argument in Endrew F. v. Douglas County School District, in which the justices will consider what level of educational benefits students with disabilities must receive. Amy Howe previewed the case for this blog. Dara Brown and Jaeeun Shin at Cornell’s Legal Information Institute also provide a preview. Commentary comes from Rick Hills at PrawfsBlawg, who argues that inviting “litigation over an unworkably vague standard,” as he contends the petitioners are doing in this case, “can only exacerbate the class bias of a statutory scheme already notorious for favoring wealthier and litigation-savvy parents through its litigation-oriented focus,” and that “the statutory standard offered by the petitioners, although calling for equal educational opportunity, may actually make educational opportunity more unequal.”

On Monday, the court heard argument in two cases. The first, Nelson v. Colorado, is a due process challenge to Colorado’s requirement that defendants whose convictions are later reversed must prove their innocence before receiving refunds of monetary penalties. Steve Vladeck analyzes the argument for this blog. Monday’s second argument was in Lewis v. Clarke, which asks whether tribal sovereignty bars a lawsuit in state court against a limousine driver who rear-ended the plaintiffs while driving his passengers home from a tribe-owned casino. Todd Henderson has this blog’s argument analysis.

Yesterday the court heard argument in 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 prohibits the imposition of surcharges for customers who use credit cards. Coverage of the argument comes from Alexandra Farone at Jurist and from Tony Mauro at, who reports that “a U.S. Supreme Court case that was touted as a significant retail business dispute with First Amendment ramifications seemed to fizzle fast Tuesday as justices questioned whether freedom of speech was involved at all.” Another look comes from Daniel Fisher at Forbes, who remarks that the “ghosts of dead economists and a century-old decision that many consider to be judicial activism at its worst hovered over the U.S. Supreme Court”; he too predicts that “the court will step back from interpreting this law under the First Amendment.” Yesterday’s argument docket also included Goodyear Tire & Rubber Co. v. Haeger, which explores the limits of a court’s inherent power to impose sanctions for bad-faith conduct during discovery. Howard Wasserman analyzes the argument for this blog. 

The court granted a stay yesterday in a North Carolina redistricting case, blocking enforcement of a lower-court order requiring the state to draw new legislative maps by March 15 of this year and hold special elections in the fall. Amy Howe has this blog’s coverage. At his Election Law Blog, Rick Hasen discusses the court’s “surprising” action, speculating that “maybe it was Justice Breyer and the conservatives who are ready to pull back here” and noting that it “is possible this order will be short-lived, as the Court will consider whether to take up the underlying appeal in the case at a conference in just 9 days.”

In the second of a series of profiles of jurists said to be on Donald Trump’s shortlist of potential nominees for the vacant seat on the court, Kevin Russell and Charles Davis look at the record of William Pryor, a judge on the U.S. Court of Appeals for the 11th Circuit, for this blog. At Reason’s Hit and Run blog, Damon Root looks at another Trump shortlister, Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, questioning whether Sykes’ views on judicial deference have changed since her confirmation hearings in 2004 and expressing hope that if Sykes is the nominee, “the Senate Judiciary Committee will ask her to further explain her position on the limits of judicial deference and the proper role of the courts.” At Truthdig, Bill Blum asserts that both Pryor and Sykes are “strong supporters of voter ID suppression techniques, Hobby Lobby-style religious freedom and the concept of ‘corporate personhood,’” as well as being “fervently anti-union, anti-abortion and opposed to gay marriage”; he urges “the Democrats and an energized public” to “rise to the occasion and ‘bork’ Trump’s choices to reshape the Supreme Court.”

At the International City/County Management Association’s KnowledgeNetwork blog, Lisa Soronen discusses Monday’s summary opinion in White v. Pauly, in which the justices held that the lower courts that rejected a police officer’s claim of qualified immunity had applied the relevant law at an overly generalized level; she notes that all “three officers involved in this incident were sued, and the victory in this case is more limited than any of them would like.” Another look at the case comes from Lawrenz Fares at Jurist, who observes that the “court’s opinion comes in the midst of public outcry about police accountability.”


  • At Jurist, William Theisen reports on the Monday’s denial of a cert petition filed by Dow Chemical challenging a lower-court ruling that denied more than $1 billion in tax deductions based on partnerships that lower courts had ruled were “‘a sham,’ with no legitimate business purpose beyond avoiding tax liability.”
  • At ArsTechnica, David Kravets surveys the First Amendment cases on the court’s docket this term.
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald discuss Gloucester County School Board v. G.G., a case arising out of a transgender student’s request to use the boys’ bathroom at his high school, noting that the court of appeals deferred to “an informal, unpublished letter written by a low-level bureaucrat,” and arguing that, if the case is not mooted under the Trump administration, the court should hold “that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.”
  • At Vinson & Elkins’ Lincoln’s Law Blog, Ralph Mayrell looks at six False Claims Act cases in which the court recently denied certiorari, along with five more that remain on the cert docket.
  • At Empirical SCOTUS, Adam Feldman considers “whether and how the timing of certiorari (cert) petition filings affects the likelihood of a grant,” concluding that “attorneys may benefit from strategically deciding when to file petitions for writ of certiorari.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jan. 11, 2017, 7:25 AM),