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Thursday round-up

On Tuesday night, the court denied a stay of execution in the case of a Texas death-row inmate, over a dissent by Justice Stephen Breyer. Amy Howe reports on the ruling at her eponymous blog, noting that Breyer “would have put Ruiz’s execution on hold to allow the court to take a closer look at Ruiz’s claim that executing him would violate the Constitution’s bar on cruel and unusual punishment because he had spent 22 years in ‘permanent solitary confinement’” simply because “’he is a prisoner awaiting execution.’” Additional coverage comes from Chris Geidner at Buzzfeed. At Slate, Rebecca McCray discusses Breyer’s focus on the “profound psychological harm” caused by combining  “that isolation with a looming and uncertain execution date.”

The White House announced on Tuesday that President Trump will nominate acting Solicitor General Noel Francisco to serve as solicitor general. Amy Howe has this blog’s coverage. Additional coverage comes from Robert Barnes in The Washington Post, Greg Stohr at Bloomberg, who notes that “Francisco, a former law clerk to the late Justice Antonin Scalia, is one of more than a dozen lawyers from Jones Day Reavis & Pogue who have taken positions in the Trump administration,” and Richard Wolf at USA Today, who observes that “Francisco will be inheriting the job at a fortuitous time for conservatives.”

Commentary on this week’s decision by the court to send Gloucester County School Board v. G.G., a high-profile transgender rights case that had been scheduled for oral argument later this month, back to the U.S. Court of Appeals for the 4th Circuit for another look comes from Jim Campbell in The Daily Signal, who points out that other cases filed by students “concerned about their privacy rights” who “attend public schools that allow classmates of the opposite sex to share their locker rooms and restrooms,” and who “object to this violation of their dignity and privacy,” will likely make their way back to the Supreme Court. In The Economist, Steven Mazie explains why the court “opted for the path of least resistance” in the case. At his eponymous blog, Lyle Denniston reports that in the aftermath of the Supreme Court’s order, the student “asked a federal appeals court on Wednesday to move quickly to hold a new  hearing and reach a new decision in his case … before he graduates from school on June 10.”

At Inside Sources, Ryan Owens discusses Monday’s decision in in Peña-Rodriguez v. Colorado, in which the justices held that evidence that a juror relied on racial stereotypes or animus to convict a criminal defendant trumps an evidentiary rule barring post-verdict testimony about statements made during jury deliberations, arguing that “the decision will have a monumental effect on lower courts and criminal cases.” Another look at the decision comes from Robert Weisberg at Stanford Law School’s Legal Aggregate blog, who observes that the “Court’s decision will make moral sense to many, but it also illustrates how race can challenge the usual boundaries of constitutional law.”

In The New York Times, Carl Hulse reports that as the confirmation hearing for Judge Neil Gorsuch approaches, “liberal activists are alarmed not only at the prospect of his lifetime appointment to the court, but also at what they see as muted opposition from Senate Democrats.” At the Associated Press, Mark Sherman reports on Gorsuch’s reputation as a skilled writer, noting that part “of Gorsuch’s appeal is that he explains himself using words you don’t need to be a lawyer to understand.” Bloomberg BNA’s Parts Per Billion (podcast) features a discussion of how a Gorsuch confirmation might “change the way the court rules on environmental issues.” At The American Prospect, Dorothy Samuels argues that at his hearing, Gorsuch should not “be spared questions about his originalist philosophy, which resembles Scalia’s, or how he would have voted in cases previously decided by the powerful court he would join,” asserting that there is a “difference between the kind of dodging that is truly necessary to protect judicial independence and integrity, and reflexive stonewalling.” At the ACS Blog, Simon Lazarus contends that senators should probe Gorsuch’s views on forced arbitration to “provide a basis for assessing whether he would consistently respect the text and history of laws, or check that approach at the Supreme Court’s front door when business interests point in the opposite direction.”


  • At Reason’s Hit and Run blog, Elizabeth Nolan Brown discusses Justice Clarence Thomas’ dissent from denial of cert on Monday in an appeal of an appeals court ruling ordering a convicted sex-trafficker from Jamaica to pay restitution to an Australian woman for crimes that occurred in Australia, noting that Thomas asserted that “America is ‘not the world’s lawgiver’ and can’t punish non-citizens for activity committed abroad.”
  • At Empirical SCOTUS, Adam Feldman looks at the court’s diminishing caseload, observing that without “a specific impetus, the Justices are unlikely to take on more cases annually,” and that although the justices spend a fair amount of time reviewing cert petitions, “a lingering question will continue to be how the Justices have reallocated their time as the Court’s caseload has decreased.”
  • In an essay in the Stanford Law Review Online, David Freeman Engstrom and Jonah Gelbach discuss California Public Employees Retirement System v. ANZ Securities, a case involving timeliness rules for individual securities fraud actions that are related to securities fraud class actions, concluding that a decision that the filing of a class action does not suspend the limitations period for individual suits would result in “a substantial spike in litigation in federal courts.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in CALPERS.]

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Mar. 9, 2017, 7:40 AM),