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Tuesday round-up

Yesterday the court issued orders from its conference of Friday, March 3; the justices sent 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 reconsideration in light of the Trump administration’s recent revocation of Obama-era guidance on which the appeals court had relied. Amy Howe covers the order for this blog. Additional coverage comes from Adam Liptak in The New York Times, Robert Barnes in The Washington Post, Richard Wolf in USA Today, Lydia Wheeler at The Hill, Daniel Fisher at Forbes, Pete Williams at NBC News, Nina Totenberg at NPR, the BBC News, Lyle Denniston at his eponymous blog and Mark Walsh at Education Week, who notes that “the issue could return to the high court within a year or two as other cases address whether Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools, may be interpreted today to cover gender identity.” Ross Runkel discusses the order at his eponymous blog, as does Tony Francois at  the Pacific Legal Foundation’s Liberty Blog. Commentary comes from German Lopez at Vox and from Zack Ford at Think Progress, who argues that although “this delays the Supreme Court’s consideration of transgender equality and justice for transgender students, it might ultimately be the best in terms of a legal outcome that truly protects them.”

Yesterday’s order list also included a per curiam ruling in Rippo v. Baker, a death-penalty case that the court remanded to for reconsideration of whether the due process clause required recusal by the trial judge, several separate statements regarding denials of certiorari, and a call for the views of the solicitor general; the justices took no action in a case involving a baker’s refusal on religious grounds to bake a cake for a same-sex wedding. Amy Howe reports on these additional orders for this blog. In The New Yorker, Roger Parloff discusses the same-sex-wedding-cake case, noting that the “situation differs in some important ways from, say, those in which African-Americans were refused service at Woolworth’s lunch counters in the nineteen-fifties.”

In Forbes, Daniel Fisher reports that Justice Clarence Thomas, in a statement respecting the denial of certiorari in a civil forfeiture case, “delivered some harsh criticism of the civil forfeiture system” by arguing that “civil forfeiture resembles a criminal penalty — meaning owners of property are entitled to constitutional protections including a jury trial and proof of guilt beyond a reasonable doubt — more than a mere civil dispute.” At Vox, German Lopez also discusses Thomas’ statement, explaining that the civil-forfeiture practice “has drawn a lot of criticism from criminal justice reformers in recent years.” Commentary comes from Eugene Volokh at The Washington Post’s Volokh Conspiracy blog, who suggests that “Thomas is sending a signal” “that at least one justice — and maybe more — will be sympathetic” to arguments against civil forfeiture in future cases.

The court also issued two opinions yesterday. In Peña-Rodriguez v. Colorado, the justices held 5-3 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. Amy Howe analyzes the opinion for this blog. Additional coverage comes from Nina Totenberg at NPR, Adam Liptak in The New York Times, Richard Wolf in USA Today, Lawrence Hurley at Reuters, Robert Barnes at The Washington Post, college student Daniel Hensel at Article 8 and Lyle Denniston at his eponymous blog, who notes that the ruling creates “for the first time a broad exception to the view that jurors are to be immune to challenges to the way they deliberated toward a verdict” and that “the actual decision left much for judges in the trial courts — state and federal — to work out on just how the ruling would be put into practice, case by case.” In Beckles v. United States, the court ruled 7-0 (without the participation of Justice Elena Kagan) that the advisory federal sentencing guidelines are not subject to vagueness challenges under the due process clause. The Associated Press reports that the justices ruled that “the sentencing guidelines can’t be challenged for being too vague since they only offer a guide to how courts can impose sentences within an acceptable range.”


  • In The New York Times, Adam Liptak reports that the court’s statement in a previous case that recidivism among sex offenders is extremely high, which was relied on last week during oral argument by an advocate defending a state-law ban on social-media use by sex offenders, may be “rooted in an offhand and unsupported statement in a mass-market magazine.”
  • At Politico, Elana Schor reports that liberal “advocacy groups are issuing a sharp rebuke to Senate Democrats, who they say have failed to sufficiently fight President Donald Trump’s Supreme Court pick.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and others urge the court, in Kokesh v. Securities and Exchange Commission, to hold that the five-year statute of limitations on SEC enforcement actions applies to actions seeking disgorgement, arguing that the “agency has brought disgorgement actions not to make the victims of wrongdoing whole, aid in public securities-law enforcement, or encourage private compliance, but to punish unsuspecting defendants for decades-old conduct, destroy their reputations and careers, and score massive financial judgements that go straight to the vaults of the U.S. Treasury rather than the pockets of any victims.”
  • The World and Everything in It features discussions of Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment; McLane v. EEOC, in which the justices will decide what standard of review courts of appeals should use when reviewing district courts’ decisions to quash or enforce EEOC subpoenas; and Kindred Nursing Centers Limited Partnership v. Clark, which asks whether federal law pre-empts a Kentucky rule that requires a power of attorney to mention arbitration expressly before it can be used to bind a nursing-home resident.
  • At Supreme Court Brief (subscription required), Tony Mauro reports that the family of the late Justice Antonin Scalia has donated Scalia’s papers to Harvard Law School, the late justice’s alma mater, and that “files about specific cases” “‘will not be opened during the lifetime of other justices or judges who participated in the case.’”

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