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Tuesday round-up

Today the court hears oral argument in two cases. First up is Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, another civil procedure case involving a court’s specific jurisdiction over out-of-state defendants sued by out-of-state plaintiffs. Ronald Mann previewed the case for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Andrew Maury and Eugene Temchenko preview the case for Cornell University Law School’s Legal Information Institute. The second argument today of the day is BNSF Railway Co. v. Tyrrell, in which the justices will consider the contours of personal jurisdiction for lawsuits brought under the Federal Employers’ Liability Act. Amy Howe had this blog‘s preview. Karen Smeda and Natalia San Juan preview the case for Cornell. At the Cato Institute’s Cato at Liberty blog, Walter Olson argues that today’s cases offer the court an opportunity to draw lines that will enable “the federal judiciary to police overreaching by state courts in their jurisdictional claims.”

Yesterday the justices released their orders from last Friday’s private conference; although they did not grant review in any cases, the order list included several statements related to the denial of certiorari. Amy Howe covers the order list for this blog. At the Cato Institute’s Police project, Tim Lynch discusses Justice Sonia Sotomayor’s dissent from the court’s decision to deny review to a lower court’s ruling granting qualified immunity to a police officer who was sued for shooting a suspect; he argues that at “the least, the jury should have decided whether the shot was truly justified.” In The Atlantic, Ian MacDougall points to “growing concern in the legal community that judges in police civil-rights lawsuits are usurping the jury’s role” and that by “twisting the ordinary procedure of summary judgment …, these judges prematurely shut down lawsuits by, in effect, crediting the officer over the plaintiff.” Another look at Sotomayor’s dissent, and at Justice Samuel Alito’s concurrence in the denial, comes from Will Baude at The Washington Post’s Volokh Conspiracy blog, who questions Alito’s “description of the court’s neutral principles of certiorari,” observes that “the broader pattern of qualified immunity cases … suggests a double standard for the court’s jurisdiction,” and notes that  “in the past 35 years, the overwhelming majority of the court’s qualified immunity decisions have been in favor of officers whose immunity was denied by the lower courts.” At ThinkProgress, Ian Millhiser agrees that the court “appears to be applying a double standard,” maintaining that a “majority of the justices are willing to step out of their usual role to protect cops caught up by a dubious lower court decision, but they are unwilling to do the same favor for a person shot by a cop.”

Yesterday the court heard argument in McWilliams v. Dunn, which asks whether an Arkansas defendant in a capital case whose mental health was at issue was entitled to assistance from a psychiatrist independent of the prosecution. Amy Howe analyzes the argument for this blog. In The Washington Post, Robert Barnes reports that the court’s “liberals and conservatives seemed to disagree Monday” and that, as “is often the case, it may be that Justice Anthony M. Kennedy holds the deciding vote.”


  • In The Washington Post’s Volokh Conspiracy blog, David Post weighs in on Justice Clarence Thomas’ solo dissent last week in Nelson v. Colorado, in which the court held that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction; Post maintains that Thomas’ assertion that “the money that the petitioners seek is not ‘their money’ at all; it’s Colorado’s money” should be “enough to send chills down the spine of any right-thinking libertarian.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Thomas Berry urge the court to grant review in a case involving a challenge to a California law that requires family-planning clinics to inform their patients about state programs that provide free or low-cost access to family planning services that include abortions; they argue that “[c]ompelling licensed professionals to speak the government’s message is dangerous” because “it allows the government to impermissibly put its thumb on the scale in a social debate, by conscripting individuals to help spread a particular message.”
  • At ImmigrationProf Blog, Nancy Morawetz looks at Maslenjak v. United States, a case on tomorrow’s argument agenda that asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement, noting that the “oral argument comes at a time when Trump administration officials have made it very clear that they will pursue maximal enforcement under the powers they have.”
  • In Supreme Court Brief (subscription required), Tony Mauro provides “thumbnail sketches” of the four law clerks assisting Justice Neil Gorsuch during “his short transitional period at the high court until the current term winds down this summer.”
  • At Reuters, Andrew Chung reports that “General Motors Co’s bid to block hundreds of lawsuits, potentially worth billions of dollars, over a deadly ignition-switch defect broke down” when the court yesterday declined to consider “its appeal claiming the suits were barred by the No. 1 American automaker’s 2009 bankruptcy.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Apr. 25, 2017, 6:39 AM),