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Friday round-up

On Wednesday the court heard oral argument in Coventry Health Care of Missouri, Inc. v. Nevils, which asks whether a federal statute governing federal employee health insurance benefits pre-empts Missouri’s anti-subrogation law. Ronald Mann analyzes the argument for this blog. Additional coverage of the argument comes from Tim Ryan at Courthouse News Service.

The justices issued an opinion on Wednesday in Bethune-Hill v. Virginia State Board of Elections, upholding one of 12 Virginia electoral districts against a racial gerrymandering challenge and sending the remaining 11 back to the district court to reconsider whether race was the predominant factor in drawing the district lines. In The Wall Street Journal, Jess Bravin reports that “Justices Clarence Thomas and Samuel Alito agreed with part or all of the result on narrow grounds, but each filed a separate opinion expressing discomfort with voting-rights precedents protecting minority political power.” At Dorf on Law, Michael Dorf discusses the ruling, noting that although “cases like Bethune-Miller show that the VRA can be used as a shield by legislatures committed to protecting minority voting rights against lawsuits challenging the use of race in districting,” they “do nothing to revive the VRA as a sword that can be wielded by the Justice Department to challenge the numerous efforts around the country to undermine voting by racial minorities.”

 At his eponymous blog, Lyle Denniston reports on the timing issues raised by the Trump administration’s revocation of prior Department of Education guidance on which the lower court had relied in Gloucester County School Board v. G.G., a challenge by a transgender high-school student to a Virginia school board’s bathroom policy, which is scheduled for oral argument on March 28, noting that “If the Justices announce nothing on Friday or next Monday about scheduling,” “that could be at least a hint that they are going to go forward on the existing schedule.” At Dorf on Law and Balkinization, Sam Bagenstos and others discuss a “friend of the court” brief filed in the case on their behalf, which argues that “the school board policy excluding Grimm from the common restrooms and publicly stigmatizing him as unfit to use the same restrooms as all other boys discriminates against him based on sex in the most literal way: it excludes him from the male restroom on the basis of his sexual anatomy.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on the brief.]

At The Hill, Lydia Wheeler reports that “31 members of the Supreme Court bar,” in a letter to the Senate Judiciary Committee as it prepares to hold a hearing on the nomination of Judge Neil Gorsuch to the Supreme Court, have “voiced their support for Gorsuch to be confirmed.” In the ABA Journal, Debra Cassens Weiss reports on a proposal Gorsuch has endorsed that would change “federal procedural rules to make civil jury trials the default.” At the Library of Law and Liberty, David McDonald argues that Gorsuch’s views on Chevron deference reveal him to be “part of a small but growing cadre of jurists who have found a way to actively hold the legislative and executive branches to account while still remaining respectful of the constitutionally limited scope of their authority.”


  • At In a Crowded Theater, Erica Goldberg analyzes Monday’s oral argument in Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment, explaining that the justices “will decide not only what level of First Amendment scrutiny applies to ‘access’ restrictions on speech,” but also “whether speech can be restricted as a means of preventing crimes,” and predicting that “the North Carolina law will be struck down.”
  • At the Lock Law Blog, Ryan Lockman looks at Hernández v. Mesa, a case that stems from the fatal cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, concluding that the case is potentially a “judicial Rorschach test, with the justices each seeing the core of this case in their own way and ruling accordingly.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that an unusually large number of Supreme Court law clerks from last term “have landed jobs outside the D.C. beltway,” and explains that possible reasons for the migration include “greater interest by New York firms in law clerks, the draw of returning to home, saturation of the market in Washington, and even the 2016 presidential election.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Mar. 3, 2017, 7:09 AM),