on Apr 4, 2017 at 6:45 am
Yesterday the court granted certiorari in two cases. The first is Jesner v. Arab Bank, in which the justices will decide whether corporations can be sued by noncitizens in U.S. courts for violations of international law. The second new grant is in Ayestas v. Davis, which involves the standard for determining when a death-row inmate is entitled to receive federal funds to assist him in his federal post-conviction proceedings. Amy Howe covers the grants for this blog.
The justices also issued decisions in two cases yesterday. In McLane v. EEOC, the court ruled 7-1 that courts of appeals should review a district court order to enforce or quash an EEOC subpoena for abuse of discretion, not de novo. At his eponymous blog, Ross Runkel looks at the decision. And in Dean v. United States, a unanimous court held that a trial court can consider mandatory minimums for possessing firearms when sentencing a defendant for an underlying drug offense.
At The Hill, Jordain Carney reports that “Senate Democrats have clinched enough support to block Neil Gorsuch’s nomination to the Supreme Court, setting up a ‘nuclear’ showdown over Senate rules later this week.” Additional coverage comes from Nina Totenberg at NPR, Ed O’Keefe and Elise Viebeck in The Washington Post, Matt Ford in The Atlantic, Richard Wolf in USA Today, Elana Schor at Politico, Scott Detrow and Nina Totenberg at NPR, Mark Walsh at Education Week, Gary Gately at Talk Media News, Matt Flegenheimer in The New York Times and Charlie Savage in The New York Times. At his eponymous blog, Lyle Denniston notes that if confirmed, Gorsuch could cast a “deciding vote” in the controversy over President Donald Trump’s immigration restrictions, which “could reach the Supreme Court as early as this month.”
The editorial board of The Washington Post maintains that it “would be better for everyone if the two sides struck a bargain that resulted in Mr. Gorsuch’s confirmation and preserved the filibuster for future nominees.” In an op-ed in U.S. News and World Report, Robert Schlesinger warns Senate Republicans that if they eliminate the filibuster for Supreme Court nominations, the “world’s greatest deliberative body would be another step closer to becoming just another legislative chamber.” In The Nation, Ari Berman makes the case for a Democratic filibuster. At Jost on Justice, Ken Jost argues that “Senate Republicans owe it to the American people to allow full debate and deliberation on Gorsuch’s nomination before sending him to the Supreme Court for what is likely to be 25 years or longer.” At CNN, Julian Zelizer asserts that “Senate Democrats have good reason to move forward with a filibuster,” and that “this could turn out to be a defining moment for the party in its struggle against the Trump presidency.”
In an op-ed in The Washington Post, Richard Hasen argues that Gorsuch “is an affirmative action baby,” but that “there’s no reason to believe that if he’s confirmed, his rulings on the high court would reflect the fact that he did not get where he is today solely based on his merits — or extend to others the benefit of a helping hand.” In an op-ed in the Boston Globe, Nancy Gertner warns that Gorsuch’s approach to judging is “not neutral, not required by the law, and far out of the mainstream.” At The Trace, Mike Spies and Dan Friedman assert that there is “no fight the National Rifle Association is more eager to wage than the one over who will claim Antonin Scalia’s seat on the United States Supreme Court.” In a column for the Oxford University Press’ OUPblog, Edward Zelinsky argues that Gorsuch should be confirmed because he is “a nominee of professional distinction, one whose credentials and demeanor reinforce the rule of law.”
- In The Atlantic, Matt Ford notes that a recent report by the Justice Department’s Office of the Inspector General on its investigation into the department’s forfeiture programs, which have brought in about $28 billion over the last decade, offers support for Justice Clarence Thomas’ recently expressed “discomfort with forfeiture.”
- The World and Everything in It features discussions of County of Los Angeles v. Mendez, Impression Products, Inc. v. Lexmark International, Inc., and McLane v. EEOC, which was decided yesterday.
- At The George Washington Law Review’s On the Docket, Bruce Markell discusses Czyzewski v. Jevic Holding Corporation, in which the court held that structured bankruptcy dismissals must follow priority rules unless creditors consent, noting that although “Jevic tells us that frontal assaults on priorities won’t work,” it left open “the efficacy of rearguard actions—those involving pre-dismissal “interim” variations.”
- At Supreme Court Brief (subscription required), Tony Mauro interviews Barry Lynn, executive director of Americans United for Separation of Church and State, about the many Supreme Court cases in which his group has participated, including this term’s Trinity Lutheran Church of Columbia, Inc. v. Pauley, “which touches on government aid to secular programs offered by religious institutions.”
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