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Wednesday round-up

Today the court hears oral argument in two cases. The first is Amgen Inc. v. Sandoz Inc. (consolidated with Sandoz Inc. v. Amgen Inc.), a complex case involving rules for the licensing of biosimilars. John Duffy previewed the case for this blog. At Cornell University Law School’s Legal Information Institute, Gerard Salvatore also provides a preview. At Written Description, Katie Mladinich surveys the case, noting that the Federal Circuit quoted Churchill “in describing the statute as ‘a riddle wrapped in a mystery inside an enigma,’” and that the “Supreme Court is now faced with unraveling this riddle.” The second argument today of the day is in Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement. Amy Howe had this blog’s preview.  Krsna Avila and Nicholas Halliburton preview the case for Cornell.  

Yesterday the court heard oral argument in BNSF Railway Co. v. Tyrrell, in which the justices considered the contours of personal jurisdiction for lawsuits brought under the Federal Employers’ Liability Act. Amy Howe analyzes the argument for this blog. In Supreme Court Brief (subscription required), Tony Mauro reports that the argument “appeared inconclusive,” yielding “no clear sign that the high court would clarify the jumbled rules of jurisdiction.”

There was an unusual soundtrack to yesterday’s first argument: the chime of a cell phone, which turned out to belong to Justice Stephen Breyer. Mark Walsh reports on the unaccustomed interruption for this blog. Additional coverage comes from Robert Barnes in The Washington Post, who notes that “[e]lectronic devices are strictly forbidden in the courtroom, even for the lawyers who are arguing cases.” In The National Law Journal (subscription or registration required), Tony Mauro reports that the “78-year-old justice was clearly upset with himself, and later was seen holding his head and shaking it.”

Yesterday the justices issued a unanimous opinion in Lewis v. Clarke, holding that a tribe’s sovereign immunity does not extend to a tribal employee sued in his individual capacity. Todd Henderson analyzes the opinion for this blog. At Stanford Law School’s Legal Aggregate blog, Gregory Ablavsky observes that “the decision treats tribal sovereign immunity seriously and legitimately—a small but important accomplishment, given that in previous opinions the Court upheld precedent only while holding its nose, denigrating tribal sovereign immunity as an ‘accident’ and expressing ‘a fair bit of sympathy’ for critiques.”

On Monday, the court heard argument in Davila v. Davis, in which the justices will decide whether ineffective assistance of counsel in a state habeas proceeding excuses a defendant’s failure to raise an underlying claim of ineffective assistance of appellate counsel. Steve Vladeck analyzes the argument for this blog.

At PrawfsBlawg, Howard Wasserman discusses Justice Sonia Sotomayor’s dissent from the court’s decision on Monday to deny review of a lower court’s ruling granting qualified immunity on summary judgment to a police officer who was sued for shooting a suspect, observing that the dissent “highlights the Court’s failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers.” At Vox, German Lopez notes that, in Sotomayor’s view, a summary judgment ruling like this one is “one of the biases in the legal system that may let cops get away with excessive use of force — by slanting the system in favor of the police officer.”


  • At Crime and Consequences, Kent Scheidegger discusses Monday’s argument in McWilliams v. Dunn, in which the justices will decide 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, concluding that “the Supreme Court may well decide that the Ake precedent is ambiguous, the Oklahoma court’s decision is not an unreasonable application of it, and that is all that Congress has authorized a federal habeas corpus court to decide.”
  • At the National Council of State Legislatures’ blog, Lisa Soronen looks at Nelson v. Colorado, in which the justices held last week 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; she notes that this “is one of those rare cases where the Supreme Court invalidates a state law but no other states have anything identical or similar.”
  • A Heritage Foundation podcast features a discussion of Justice Neil Gorsuch’s arrival on the Supreme Court bench.
  • At Empirical SCOTUS, Adam Feldman examines data suggesting that the “recent consistency of Justice Thomas’ dissents harkens back to one of history’s strongest proponents (and one of the most regular writers) of the dissenting opinion, Justice William Orville Douglas.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Apr. 26, 2017, 7:17 AM),