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Wednesday round-up

On Monday, the justices issued decisions in two cases. In McLane v. EEOC, the court ruled that courts of appeals should review a district court order to enforce or quash an EEOC subpoena for abuse of discretion, not de novo. Charlotte Garden analyzes the opinion for this blog. In The National Law Journal, Marcia Coyle reports that employers “who succeed or fail in blocking an investigative subpoena by the Equal Employment Opportunity Commission will find the district court’s decision likely to survive on appeal.” In Dean v. United States, the court held that a trial court can consider mandatory minimums for possessing firearms when sentencing a defendant for an underlying drug offense. Douglas Berman has this blog’s opinion analysis. At The Hill, Lydia Wheeler reports that the “verdict is a victory for groups opposed to mandatory minimum sentences that were arguing for more flexibility for courts.”

In The Washington Post, Ed O’Keefe and Sean Sullivan report that the “Senate plowed Tuesday toward a historic and bitter showdown over President Trump’s Supreme Court nominee,” and that there was “no sign of compromise as the chamber formally opened debate on Judge Neil Gorsuch.” Also in The Washington Post, Darla Cameron looks “at how the votes went for Scalia and the eight sitting justices” during their confirmations and concludes that “the process has become more polarized over time.” At Empirical SCOTUS, Adam Feldman compares several aspects of Gorsuch’s confirmation hearing to those of all previous nominees to the Supreme Court.

In The Washington Post, James Hohmann observes that “Gorsuch, once confirmed, will be well positioned to provide the decisive vote on a host of issues that might help cement this Republican hold on power, or at least give the party a leg up in future elections.” At the ImmigrationProf Blog, law student Chiara Wellman looks at Gorsuch’s record in immigration cases, concluding that his “reluctance to follow the Chevron Doctrine is a sign that he will not blindly follow the harsh stance of the current administration, and will instead look to the laws, past precedent of the courts, and his own knowledge to make decisions.” At Reason’s Hit & Run blog, Damon Root argues that Democrats should “take a moment to consider whether Merrick Garland was really all that preferable to Neil Gorsuch on certain issues that Democrats claim to care deeply about,” asserting that “Neil Gorsuch may well be more ‘liberal’ than Merrick Garland” in areas like criminal justice and executive branch power. In The New York Times, Justin Wolfers examines the “peer effect” in judging, in which “one judge influences another to make a decision,” concluding that “the current battle in the Senate goes far beyond the current Supreme Court nominee,” because it “is likely to alter how the other eight justices will lean as well.”

The editorial board of The New York Times declares that what “matters is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court,” and that “is what Mitch McConnell has driven the Senate to put at risk.” In an op-ed in The Arizona Republic, Linda Valdez urges Senate Democrats to filibuster the Gorsuch nomination, arguing that this “is one time they can win by losing.” At Rewire, Jessica Mason Pieklo argues that “it’s too late” for a filibuster, and that “by not fighting for Garland the way Democrats should have, they likely handed control of the most powerful Court in the country to the most conservative wing of the Republican Party.” In The New York Times, David Leonhardt contends that “Democrats are right to force McConnell to be the one who takes the partisan step of eliminating the Supreme Court filibuster.” In The Washington Post, Dana Milbank notes that during “four hours of statements before Monday’s vote, the bickering judiciary-panel members generally agreed on only one thing: They are about to do something very bad.” Also in The Washington Post, Jennifer Rubin argues that whether “you favor Gorsuch or not, support keeping the filibuster or not, the talking points on both sides demonstrate how intellectually dishonest both Democrats and Republicans have become.”


  • At Capitol Media Services (via the Arizona Capitol Times), Howard Fischman reports that the Supreme Court on Monday declined to review “a criminal conviction that the chief justice of the Arizona Supreme Court openly feared could lead to child molesting charges against parents for routine actions.”
  • At In a Crowded Theater, Erica Goldberg looks at the issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a pending cert petition involving a First Amendment challenge to a Colorado public accommodations law by a baker who objects to having to create cakes for same-sex weddings, arguing that although “the Colorado Court of Appeals’ decision, holding that Phillips engaged in unlawful discrimination and that his behavior is not protected by the First Amendment, is probably correct,” “difficult, thorny issues with the lower court’s ruling abound.”
  • In Education Week, Christina Samuels and Mark Walsh look at the court’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; they report that advocates “for children with disabilities are cheering” the decision “as a triumph that establishes more-ambitious academic expectations for students in special education,” while “school districts and some education groups have a more measured response, saying it creates a standard … that most districts were already exceeding.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Apr. 5, 2017, 7:45 AM),