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Wednesday round-up

Today the court will hear oral argument in two cases. First up is Turner v. United States, which involves the scope of the prosecution’s duty to disclose exculpatory evidence under the Brady rule. Amy Howe previewed the case for this blog. Alla Khodykina and Rachael Hancock at Cornell University Law School’s Legal Information Institute also provide a preview. The second argument today is in Honeycutt v. United States, which asks whether co-conspirators can be jointly and severally liable for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. Rory Little had this blog’s preview. Andrew Maury and Scott Benjamin Cohen preview the case for Cornell.

Yesterday the justices heard 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 his guilt was overwhelming. Amy Howe has this blog’s argument analysis. Commentary on the case comes from Tim Lynch in an op-ed at The Hill, in which he urges the court to “reject the government’s argument that there doesn’t have to be a trial because everyone already knows what the outcome would be,” and argues that “there’s nothing wrong with jury nullification.” Lynch also comments on the case in a Cato Institute podcast.

The court also issued a decision yesterday in Moore v. Texas; the justices ruled 5-3, in a decision by Justice Ruth Bader Ginsburg, that the Eighth Amendment and the court’s precedents preclude Texas from relying on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe analyzes the decision for this blog. Coverage comes from Robert Barnes in The Washington Post, Greg Stohr at Bloomberg, Adam Liptak in The New York Times, Richard Wolf in USA Today, Jess Bravin in The Wall Street Journal, Mark Walsh in Education Week, and Jurist’s Paper Chase blog. Commentary comes from Kent Scheidegger at Crime and Consequences, who argues that the critical question in the case “was whether private organizations with pro-defendant agendas … have the power to amend the Eighth Amendment so that states must follow their latest pronouncements, rather than their previous pronouncements, in deciding who qualifies for the no-matter-what exemption,” and that on “this essential point the Court hands us a bowl of mush.” In The Atlantic, Garrett Epps observes that “if history is a guide, there will be further determined efforts to apply the local standard many of us grew up with—’He don’t look so all-fired disabled to me’—and a few justices sympathetic to those efforts.” At Slate, Mark Joseph Stern observes that as “Moore makes clear, the lives of intellectually disabled inmates still depend upon the balance of the Supreme Court.”

On Monday, the court heard oral argument in Advocate Health Care Network v. Stapleton, which asks whether the Employee Retirement Income Security Act’s exemption for church plans applies to pension plans maintained by church-affiliated organizations. Ronald Mann analyzes the argument for this blog. In The Economist, Steven Mazie calls the argument “a puzzling exercise in interpretative hair-splitting.” In the Deseret News, Kelsey Dallas observes that in “parsing the legal language, justices may need to redefine what counts as a church.”

Monday’s second argument was in TC Heartland LLC v. Kraft Food Brands Group LLC, a case about the venue rules for patent infringement lawsuits. Ronald Mann analyzes the argument for this blog. At his law firm’s eponymous blog, Howard Newman discusses the case and reviews the argument, concluding that “the justices do not appear poised to upset the status quo.”

Advice and Consent (podcast) features a discussion of last week’s Senate hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. At CNN, Joan Biskupic discusses the hearing, noting that in “countless ways, the man President Donald Trump has chosen to succeed the late Justice Antonin Scalia downplayed the judicial branch and the importance of a single justice appointed to a lifetime seat,” a message that “belies the many 5-4 rulings in recent years that have changed American life and the reality that judges cannot always look simply to the facts and relevant law to resolve a dispute.” At the Election Law Blog, Rick Hasen weighs in on the Gorsuch nomination, maintaining that although “a filibuster now would be counterproductive,” he thinks it “is deserved on the merits,” because Gorsuch would likely “not only be sharply conservative but reflexively and shallowly so.” At Rewire, Elizabeth Reiner Platt looks at Gorsuch’s rulings on religious liberty claims raised by prisoners, arguing that he “may protect the rights of corporations more robustly than those of individuals.” In The Atlantic, Garrett Epps laments the “fundamentally dishonest process by which” the Gorsuch nomination “is slouching toward confirmation.”


  • At the National Conference of State Legislatures’ blog, Lisa Soronen discusses last week’s decision in Endrew F. v. Douglas County School District, which held that the Individuals with Disabilities Education Act requires a school to offer an “individualized education program” reasonably calculated to allow the student to progress appropriately in light of the child’s circumstances.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Mar. 29, 2017, 8:03 AM),