The justices will hear oral argument this morning in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a state-law contract 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. Ronald Mann previewed the case for this blog. Another preview comes from Liza Carens and Jenna Scoville at Cornell University Law School’s Legal Information Institute.

Yesterday, the court heard oral argument in Hernández v. Mesa, a case that stems from the fatal cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent. Amy Howe analyzes the argument for this blog. Additional coverage of the argument comes from Nina Totenberg at NPR, Adam Liptak in The New York Times, Daniel Fisher at Forbes, and Bill Mears at Fox News, who reports that “the eight justices appeared divided over just what kind of violations by the U.S. government against foreigners merit legal action, and whether courts should even get involved.” In The Atlantic, Garrett Epps observes that the “Justices’ questions of the parties showed little sign that they are considering this issue in a country that has changed—is changing—its attitudes toward foreigners, immigrants, and law enforcement almost hourly, and for the worse,” and that those “changes in the atmosphere make Hernandez v. Mesa a complicated straw in what may be a very ill wind indeed.” In The Huffington Post, Roque Planas and Cristian Farias look at the case, noting that a ruling in favor of the teenager’s family “could have sweeping consequences, opening up Border Patrol agents to civil liability for similar cross-border incidents, which are far from isolated.”

The justices also issued orders yesterday from their conference last Friday, granting certiorari in Class v. United States, which asks whether a defendant who pleads guilty can then challenge the constitutionality of the criminal statute under which he was convicted, and denying review in a challenge to Alabama’s lethal-injection protocol, over a dissent by Justice Sonia Sotomayor. Amy Howe covers yesterday’s orders for this blog. Additional coverage of Sotomayor’s dissent comes from Robert Barnes in The Washington Post.

At Politico, Seung Min Kim reports that Judge Neil “Gorsuch and his allies are engineering a full-court charm offensive to win over Democrats soured by the GOP’s yearlong blockade” of Judge Merrick Garland, and that “there are signs it’s working — if not generating outright Democratic support, at least leaving the minority with little to latch on to so far.” In Mother Jones, Stephanie Mencimer looks at Gorsuch’s views on “natural law,” a legal theory which “to many of its conservative US adherents … is essentially seen as God’s law—a set of moral absolutes underpinning society itself,” and which, in “recent years, natural law believers have invoked … to defend a range of anti-gay policies.” In The Economist, Steven Mazie looks at Gorsuch’s record in establishment clause cases, concluding that “Donald Trump’s Supreme Court nominee has shown little inclination to buttress America’s wall of separation between church and state.”

Briefly:

  • At the National Conference of State Legislatures’ blog, Lisa Soronen discusses McWilliams v. Dunn, which calls on the justices to decide whether the Supreme Court’s 1986 decision holding that an indigent defendant is entitled to the assistance of a psychiatrist when his mental health is an issue requires that the psychiatrist be independent of the prosecution, noting that a “friend of the court” brief filed on behalf of the defendant argues that “only with the assistance of a dedicated, confidential mental health professional will a defendant with mental health issues have meaningful access to justice.”
  • At the Election Law Blog, Rick Hasen reports that the governor and attorney general of North Carolina have taken steps to withdraw the state’s request that the Supreme Court review an appeals court decision striking down the state’s strict voting law, arguing that “getting this case withdrawn would be a big deal and a good thing.”
  • At his eponymous blog, Lyle Denniston reports that the “Trump Administration plans to move shortly to abandon the federal government’s policy of defending equal rights for transgender students, but the switch may not prevent the Supreme Court from ruling on the issue in its current term.”

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Posted in Round-up

Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Feb. 22, 2017, 6:53 AM), https://www.scotusblog.com/2017/02/wednesday-round-up-360/