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Thursday round-up

At Governing, Alan Greenblatt discusses how the “’efficiency gap,’” which “works by looking at how many votes for one party are wasted,” may provide “the missing piece for complainants” seeking to “statistically prove intent when it comes to partisan gerrymanders” like the one at issue in Gill v. Whitford, a pending cert petition the justices will consider at their June 8 conference. At Slate, Mark Joseph Stern worries that Justice Anthony Kennedy’s decision to join the dissenting opinion in Monday’s racial-gerrymandering decision, Cooper v. Harris, in which the justices upheld a lower court’s ruling that North Carolina relied too heavily on race in drawing the boundaries of two congressional districts, “suggests the justice might not be ready to take down partisan gerrymandering.” At Balkinization, Chris Elmendorf maintains that Monday’s decision, along with another racial-gerrymandering case decided earlier this term, shows that “the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice.” In a column for The New York Times, Linda Greenhouse argues that “election law … represents a front in the culture wars,” and that “the justices are as fully engaged in combat as anyone else.”

At The Washington Post, Brian Fung reports that Monday’s opinion in TC Heartland LLC v. Kraft Foods Group Brands LLC, in which the court held that in the patent venue statute, residence refers only to a defendant’s state of incorporation, “could wind up having a significant effect on which companies and innovations thrive and which get sued into oblivion.” At Baker Hostetler’s IP Intelligence Blog, Allen Sokal looks at the decision and assesses its likely effects.


  • For the News Service of Florida (via, Dara Kam reports that the court declined this week to review a Florida Supreme Court decision that struck down a state capital-sentencing statute “because it did not require unanimous jury recommendations about imposing the death penalty”; she notes that “[t]he Florida court decision regarding unanimity will likely result in new penalty-phase hearings for about 55 percent of Florida’s 386 Death Row inmates.”
  • At Bloomberg BNA, Kimberly Robinson reports on Pavan v. Smith, a pending cert petition that asks the court to review the Arkansas Supreme Court’s holding “that the U.S. Supreme Court’s same-sex marriage decision in Obergefell v. Hodges doesn’t require the state to list both married same-sex parents on their child’s birth certificate,” although “[s]tate law requires that both married opposite-sex parents be listed.”
  • At Empirical SCOTUS, Adam Feldman analyzes the court’s recent patent-law decisions, noting that “[p]erhaps to fill its docket or perhaps due to a reinvigorated interest in defining the scope of patent law, the Court has taken strides this term in delineating boundaries of patent protection” by reviewing six patent cases, well over its previous record of four in one term.
  • At Vinson & Elkins’ Lincoln’s Law Blog, John Elwood and Ralph Mayrell note a recent cert denial in a False Claims Act case.
  • In The Atlantic, Garrett Epps surveys the eight immigration cases awaiting decision at the court, observing that “history may record this term as a blockbuster in one area that has become eerily relevant to America in 2017: how much due process is owed to immigrants, undocumented aliens, aliens outside the United States—and even naturalized citizens.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (May. 25, 2017, 7:10 AM),