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Friday round-up

At Politico, Josh Gerstein and Seung Min Kin report that Supreme Court nominee Judge Neil Gorsuch “submitted 76 pages of answers Thursday to written questions senators asked after the conclusion of the nominee’s Senate Judiciary Committee hearings last week, but remained cagey about his personal views of most of the legal questions raised.” At Reuters, Lawrence Hurley reports that Gorsuch “could help decide the fate of his moves to undo climate-related U.S. regulations, but legal experts said [his] judicial record makes it hard to predict whether as a justice he would back a sweeping rollback.” In USA Today, Richard Wolf reports on the “$10 million effort to win … Gorsuch’s confirmation, funded by unknown donors to a conservative interest group called the Judicial Crisis Network,” observing that although “Democrats are in a lather over the ‘dark money’ campaign,” “there’s no evidence yet that it’s working.” In The Atlantic, Russell Berman assesses the likelihood of a filibuster by Senate Democrats, noting that there’s “an easy way and a hard way for the Senate to confirm Judge Neil Gorsuch to the Supreme Court, and it appears Democrats are going to make Republicans do it the hard way.”

Commentary on the nomination comes from the Education Opportunity Network, Brian Tashman in Advocate, Rio Tazewell at People for the American Way, and Joan Vennochi in an op-ed in The Boston Globe. At The Huffington Post, Christopher Kang cites 12 times Senate Republicans “insisted on a 60-vote threshold for Obama’s lower court nominees.”

In the ABA Journal, Erwin Chemerinsky discusses two recent decisions, in Manuel v. City of Joliet and Endrew F. v. Douglas County School District, that constitute “important victories for civil rights plaintiffs.” Another look at Endrew F., in which the court rejected as too low a court of appeals standard for measuring the level of education benefit to which a student with disabilities is entitled under the Individuals with Disabilities Education Act, comes from Josh Kenworth in The Christian Science Monitor, who observes that special needs advocates see the decision as “evidence of the leaps-and-bounds shift over the past 40 years in the way America thinks about people with disabilities.”


  • At the Election Law Blog, Rick Hasen points out that North Carolina’s petition for certiorari asking the court to review an appeals court decision striking down the state’s strict voting law has been removed from the agenda for the justices’ private conference today, speculating that something “is going on behind the scenes, because maybe the Court wants the state to resolve this somehow.”
  • In The Economist, Steven Mazie looks at the recent oral argument in Lee v. United States, an ineffective assistance of counsel case in which the lower court held that the defendant could not prove that he was prejudiced by his attorney’s erroneous advice to plead guilty, which resulted in mandatory deportation, because the evidence of guilt was overwhelming; Mazie observes that argument had “the flavour of a philosophy seminar” as the judges asked whether it is “always irrational … for a defendant to agree to a plea that results in his deportation.”
  • At Modern Democracy, Michael Parsons discusses the court’s decision earlier this term in Bethune-Hill v. Virginia State Board of Elections, in which the court upheld one of 12 Virginia electoral districts against a racial gerrymandering challenge and sent the remaining 11 back to the district court to reconsider whether race was the predominant factor in drawing the district lines, arguing that what was surprising about the opinion “was the virtually unanimous acclaim from the election law community.”
  • At Empirical SCOTUS, Adam Feldman examines the justices’ relative power over time, comparing cases that were decided by a one-vote margin, and concluding that Chief Justice William Rehnquist is “the clear leader.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald urge the court to grant a cert petition involving a First Amendment challenge to a student’s expulsion from nursing school for violating a nursing code set forth in a student handbook; they argue that if “uncorrected, the Eighth Circuit opinion permitting Keefe’s expulsion will set a dangerous precedent: Colleges will be able to punish students for expressing their views, based simply on administrators’ judgments that certain speech is inconsistent with their subjective understanding of professionalism.”
  • In the ABA Journal, Debra Cassens Weiss reports that the court “on Monday let stand a ruling in favor of the ABA in a suit by a blind man who claimed accreditation standards discriminate against law school applicants with disabilities.”
  • The editorial board of the Florida Times-Union urges the justices to allow cameras in the courtroom, noting that the “Supreme Court, like most other institutions these days, is suffering from a lack of public confidence,” and arguing that seeing “the best and brightest legal minds in action will help.”
  • At Think Progress, Ian Milheiser comments on Expressions Hair Design v. Schneiderman, in which the court ruled that New York’s credit-card surcharge ban regulates speech, contains “some good news for LGBT Americans, and potentially some good news for unionized workers as well,” noting that the decision’s “explanation … that a law does not raise First Amendment problems simply because it has some incidental impact on people’s speech  …  may seem obvious, but it hasn’t been obvious at all to conservative litigators seeking to transform the First Amendment into a weapon against business regulation.”
  • A Constitution Daily podcast features a conversation about “what’s next in our national constitutional conversation about transgender rights” now that the court has sent Gloucester County School Board v. G.G., a high-profile transgender rights case that had been scheduled for oral argument this week, back to the U.S. Court of Appeals for the 4th Circuit for another look.
  • In The Economist, Steven Mazie discusses the court’s decision this week in Moore v. Texas, in which the justices prohibited Texas from relying on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed, noting that despite “continued scepticism among the conservative justices,” “the court’s liberal bloc plus Anthony Kennedy remain committed to curtailing the death penalty—although only Stephen Breyer seems convinced that it should be ended altogether.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Mar. 31, 2017, 7:38 AM),