Tuesday round-up

EDITH ROBERTS FEB 21, 2017 6:18 AM

Today the court returns from its February break to hear oral argument in two cases. First up is Hernández v. Mesa, a case that stems from the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent. Amy Howe previewed the case for this blog. Another preview comes from Laurel Hopkins and Eugene Temchenko at Cornell University Law School’s Legal Information Institute. The George Washington Law Review’s On the Docket also previews Hernández, along with all the cases in the February sitting. In USA Today, Richard Wolf reports on Hernández, remarking on its possible effect on already fraught “U.S.-Mexico relations.” Additional coverage comes from Mark Sherman for the Associated Press, who observes that the “legal issues are different, but the Supreme Court case resembles the court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations in at least one sense”: “Courts examining both issues are weighing whether foreigners can have their day in U.S. courts.” David Gans in The New Republic argues that Hernández offers the court  “an important opportunity to reaffirm its core constitutional role of keeping the political branches in check, vindicating individual rights, and ensuring that no one is above the law,” and predicts that this “Supreme Court case will come down, as so many do, to Justice Anthony Kennedy.”

The second argument of the day is 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 had this blog’s preview; Nicholas Velonis and Scott Benjamin Cohen preview the case for Cornell. At his eponymous blog, Ross Runkel discusses McLane, noting that the case “is an odd duck because both parties agree that the 9th Circuit got the law wrong, and the Court had to appoint an amicus curiae to present arguments in favor of the 9th Circuit’s position.”

In The Washington Post, Kimberly Kindy and others look at Judge Neil Gorsuch’s “development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist” and report that  “he is quite capable of surprise.” Also in The Washington Post, Paul Kane reports that technically, Gorsuch “was Trump’s selection, but for many critics and fans, the vacancy will be remembered as the McConnell seat,” and that “McConnell credits his Supreme Court strategy as a critical factor in Trump’s victory.” In The New York Times, Adam Liptak reports that despite Trump’s vow on the campaign trail to “’open up those libel laws,’” Gorsuch “seems destined to disappoint his patron,” because his “decisions in libel and related cases show no inclination to cut back on protections for the press.” At Jost on Justice, Ken Jost looks at Gorsuch’s dissenting opinion in an employment case, remarking that “two sets of lawyers reviewing Gorsuch’s record in advance of his confirmation hearings next month [March 20-23] both spotted the case and saw Gorsuch’s dissent as an indication of his likely stance on business and labor cases if confirmed for the lifetime post.”

Briefly:

• At the Daily Camera, Julie Marshall weighs in on Endrew F. v. Douglas County School District, in which the court will decide what level of educational benefit students with disabilities must receive, finding it “ridiculous” that “in 2017, there is still any argument that our children deserve … barely more than zero results in their educational career.”
• In Harvard Magazine, Lincoln Caplan profiles Justice Stephen Breyer, who “became the leading member of the Court to challenge Scalia about the role of the Court in American governance, the most important dispute in American law”; in “an era when it has been smart politics to attack government itself, his project has been to explain ‘the Supreme Court’s role in maintaining a workable constitutional system of government’ (his italics).”
• In the wake of the court’s release of its April argument calendar, Adam Feldman looks at the lawyers who have argued or will argue before the court this term in Empirical SCOTUS, concluding that “the pattern of experienced litigators arguing multiple cases each term appears a fixture of the modern Court.”
• In The National Law Journal (registration or subscription required), Tony Mauro reports that Justice Ruth Bader Ginsburg, in recent remarks at the University of Hawaii at Manoa, “applauded the post-inaugural women’s march as ‘an uplifting demonstration’ that sent the message that ‘we are the people of the United States, and we would like to be heard by our government.’”
• At the University of Pennsylvania Law School’s RegBlog, Erwin Chemerinsky examines some of the court’s recent cases involving “legal doctrines that make it very difficult—and sometimes impossible—for citizens to sue police officers or the government entities that employ them,” arguing that by “limiting suits against both government officers and government entities, the Supreme Court has closed the courthouse door to those whose rights have been violated,” contributing “to the serious problem of police violence in American society.”
• The World and Everything in It (podcast) features discussions of 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, and Midland Funding v. Johnson, which asks whether a federal fair-debt-collection-practice statute applies to stale claims filed by debt-buyers in bankruptcy court.

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