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Thursday round-up

The justices issued an opinion yesterday in Bethune-Hill v. Virginia State Board of Elections, a racial gerrymandering case challenging Virginia’s redrawing of 12 electoral districts after the 2010 census. The court upheld one of the districts but ruled that the district court had employed the wrong standard in assessing whether race was the predominant factor in drawing the lines of the other 11 districts, and remanded the case to the district court to evaluate those 11 districts under the proper standard. Amy Howe analyzes the opinion for this blog. Additional coverage comes from Adam Liptak in The New York Times, Kevin Robillard at Politico, Robert Barnes and Gregory Schneider in The Washington Post and Lyle Denniston at his eponymous blog, who notes that under “the new ruling, … state legislatures generally will not be able to use race as the main redistricting factor even if a new map does not violate any traditional rules for districting – such as avoiding bizarre shapes and breaking up communities of interest, such as counties, towns or economic identities.” Commentary comes from Walter Olson at Cato at Liberty, Ruthann Robson at the Constitutional Law Prof Blog, and Rick Hasen at the Election Law Blog, who argues that the opinion “is more of a punt than a major decision.” A contrary view comes from Richard Pildes, also at the Election Law Blog, who considers “today’s decision a major new precedent with broad implications, not just for racial gerrymandering issues, but for partisan gerrymandering ones potentially as well.”

Yesterday also brought additional developments 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: At the request of the court, the parties filed letter briefs responding to the Trump administration’s revocation of prior Department of Education guidance on which the lower court had relied; both sides urged the court to decide the case, but lawyers for the school board proposed delaying argument to allow the justices to seek the views of the U.S. solicitor general. Amy Howe reports on the parties’ responses for this blog. Additional coverage comes from Robert Barnes in The Washington Post, who notes that it “would of course be advantageous to the school board to wait,” because if “the Trump administration weighed in, it would almost certainly be on the board’s behalf” and “by waiting, the court could have a new member.” Mark Walsh reports on the parties’ submissions for Education Week, and Lyle Denniston covers them at his eponymous blog, noting that it “seems likely that the Justices will discuss these new developments when they meet on Friday in a closed-door conference to discuss pending cases.”

In The National Law Journal (subscription or registration required), Amanda Bronstad looks at Judge Neil Gorsuch’s decisions in class action and arbitration cases, observing that “Gorsuch’s careful judicial reasoning and parsing of statutory language has more often led him to side with the defense.” In an op-ed for CNN, Rick Hasen is troubled by the implications of Gorsuch’s views in campaign finance and voting rights cases, arguing that the “court with Gorsuch, like a court with Scalia still on it, seems poised to kill off what’s left of McCain-Feingold and potentially open the door to candidates taking unlimited contributions from individuals and perhaps even corporations”; he predicts that although “Gorsuch may not go as far as Scalia in voting cases, it will be a good bet he will read the Voting Rights Act narrowly so as not to give extra protections to minority voters, seeing it as the left resorting to the courts to solve their problems.” In The Huffington Post, Elizabeth Wydra observes that although Gorsuch “has apparently suggested in private meetings with Senators that he might not be eager to ‘automatically’ overturn Roe, that runs headlong into Trump’s much-touted abortion litmus test”; she suggests that senators should ask questions during the confirmation hearing that attempt “to square Trump’s repeated invocation of litmus tests with Gorsuch’s statements in closed-door meetings with pro-choice Senators.”


  • In the Colorado Independent, Corey Hutchins discusses the court’s summary affirmance on Monday in Independence Institute v. Federal Election Commission, of a lower court judgment that rejected a First Amendment challenge to an FEC donor-disclosure requirement, noting that the “decision is a setback for those hoping to chip away at certain disclosure requirements for paid political speech.”
  • The Los Angeles Times editorial board weighs in on Monday’s argument in Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment, arguing that banning “Packingham from Twitter and Facebook wasn’t like banning him from a children’s playground; it was more like banning him from the town square or the public park where political rallies are held.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that “Gibson, Dunn & Crutcher partner Miguel Estrada on Wednesday knocked down suggestions that he was in the running to be the next U.S. solicitor general, citing ‘the deterioration of the confirmation process over the years.’”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Mar. 2, 2017, 7:13 AM),