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Thursday round-up

Yesterday the court heard oral argument in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a Kentucky rule that requires a power of attorney to refer expressly to arbitration agreements before an attorney-in-fact can bind her principal to such an agreement. Tony Mauro reports on the argument in The National Law Journal (registration or subscription required), noting that for a “bench that usually protects arbitration agreements from attack, the U.S. Supreme Court on Wednesday seemed unusually hostile to such arrangements when they are embedded in nursing home contracts.”

The justices also issued opinions yesterday in three cases. In Fry v. Napoleon Community Schools, the court ruled 8-0 in favor of a family seeking to challenge in federal court a school district’s refusal to allow a disabled child to bring her service dog to school. Amy Howe analyzes the opinion for this blog. Additional coverage comes from Mark Walsh at Education Week, who reports that the court’s holding means that “a student or family suing a school district over a disability-related issue does not always have to go through, or ‘exhaust,’ all the procedures under the Individuals with Disabilities Education Act before going to court.” Another look at the decision comes from Jim Gerl at the Special Education Law Blog.

In Life Technologies Corporation v. Promega Corporation, which was decided 7-0 (with Chief Justice Roberts recused), the justices held that the supply of a single component of a multicomponent invention for manufacture abroad does not trigger liability under a provision of the Patent Act. And in Buck v. Davis, Roberts wrote for a 6-2 majority, lifting the death sentence of a Texas inmate whose defense expert had testified during sentencing that the defendant was more likely to be violent in the future because he is black and returning to case to the lower courts, possibly for a new sentencing hearing. Amy Howe analyzes the opinion for this blog. Additional coverage of the decision comes from David Savage in the Los Angeles Times, who notes that the decision “reflects the chief justice’s steady view that race should play no role in government decisions, whether it is in schools, colleges or courtrooms.” Robert Barnes in The Washington Post, Adam Liptak in The New York Times and Jordan Rudner of the Dallas Morning News also report on the ruling.

Yesterday, the solicitor general’s office notified the court of the Trump administration’s decision to rescind Department of Education guidance on the use of school bathrooms and locker rooms by transgender students, which may affect the court’s consideration of Gloucester County School Board v. G.G., a case that involves a transgender teen who identifies as a boy and wants to use the boys’ bathroom at his Virginia high school. Amy Howe has this blog’s coverage. Additional coverage comes from Mark Walsh at Education Week, who reports that the solicitor general’s letter “merely asks the Supreme Court clerk’s office to distribute the letter and the document withdrawing the Obama administration guidance to the justices,” but “does not ask the Supreme Court to do anything regarding the Gloucester County case at this point, such as send it back to the 4th Circuit.” Also in Education Week, Evie Blad reports that it is “unclear exactly how this change in federal interpretation will affect Grimm’s case.”

The court hosted a VIP visitor yesterday: Ivanka Trump, President Donald Trump’s daughter, brought her own daughter to the oral argument. Mark Walsh reports on the first daughter’s visit for this blog; additional coverage comes from Robert Barnes in The Washington Post.

On Tuesday, the court heard argument in McLane v. EEOC, in which the justices will decide what standard of review courts of appeals should use when reviewing district courts’ decisions to quash or enforce EEOC subpoenas. Charlotte Garden has this blog’s argument analysis. Tuesday’s argument agenda also featured Hernández v. Mesa, a case that stems from the fatal cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent; Steven Mazie reports on the argument in The Economist, observing that several of the justices “seemed frustrated” by the inability of the lawyer for the family of the teenager “to articulate a practical rule to govern not just Mr Mesa’s conduct but other extraterritorial rights claims that may come down the pike.”


  • In the ABA Journal, Mark Walsh reports on a recent study of the success rate of government lawyers at the Supreme Court during various presidential administrations, noting that although “on the whole, the data confirms what scholars have long assumed: When a president goes to the Supreme Court, he wins,” the study “also reveals a declining win rate since President Ronald Reagan’s administration in the 1980s.”
  • At People for the American Way, Eliot Mincberg looks at some notable dissents written by Judge Neil Gorsuch on the U.S. Court of Appeals for the 10th Circuit, characterizing them as “consistently right-wing, generally seeking to favor big business and other authority and harm the interests of workers and those who have suffered abuse by government officials,” even “on a court which, until recently, consisted primarily of Republican appointees.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Feb. 23, 2017, 7:19 AM),