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Wednesday round-up

Yesterday the court added a case to its merits docket for next term, granting certiorari in Husted v. A. Phillip Randolph Institute, which asks whether Ohio’s process for removing voters from registration lists violates federal election laws. Amy Howe reports on the orders list for this blog. In USA Today, Richard Wolf reports that the “decision to hear the case could signify that some of the Supreme Court’s more conservative justices believe Ohio and other states have a right to purge voters for not voting in several successive elections.” In The Wall Street Journal, Jess Bravin reports that “[b]allot access has become a sharply partisan issue in several states, with Republicans typically seeking to raise barriers to voting and Democrats trying to remove obstacles.” Sam Hananel covers the grant for the Associated Press, and Lyle Denniston looks at the case at Constitution Daily. Commentary comes from Ari Berman in The Nation.

The justices also issued four opinions yesterday. At Empirical SCOTUS, Adam Feldman provides text analytics for all four. In Esquivel-Quintana v. Sessions, the court ruled 8-0 that for purposes of the immigration law, sexual abuse of a minor requires that the victim be less than 16 years of age. Kevin Johnson analyzes the opinion for this blog. At Reuters, Lawrence Hurley reports on the decision; coverage from Jurist’s Paper Chase blog is here. Jess Bravin covers the decision for The Wall Street Journal, and Kate Irby does the same for McClatchy. Alex Swoyer has The Washington Times’ coverage. At PrawfsBlawg, Roderick Hills examines “why such a decision, although right on the merits, is difficult to take seriously as an interpretation of ‘unambiguous’ statutory text.” Also at PrawfsBlawg, Carissa Hessick observes that “behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress—issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.” At The Narrowest Grounds, Asher Steinberg contends that the opinion reflects a troublesome trend towards “various strategies of Chevron avoidance, which include good-for-this-case-only exceptions to Chevron that punt tougher questions about how Chevron works, disingenuous unambiguity determinations, or simply ignoring Chevron altogether.”

In Impression Products, Inc. v Lexmark International, Inc. , the justices ruled 7-1 that U.S. and overseas sales of a product extinguish the patentholder’s rights to sue for infringement. Ronald Mann analyzes the opinion for this blog. Another look at the opinion comes from Jurist’s Paper Chase blog. In The Wall Street Journal, Jess Bravin notes that the decision continues a trend at the court of overruling the decisions of the specialized appeals court that hears patent cases “for decisions that the justices found improperly expanded patent rights in ways that stifle innovation.” At Bloomberg, Greg Stohr and Susan Decker report that the “ruling takes away an important tool used by companies to control the marketplace.” At Written Description, Daniel Hemel and Lisa Ouellette observe that the opinion “opens the door for creative contract lawyers to draft licensing agreements that severely restrict resale of patented products” and that its impact “will depend on how courts view the newfangled licensing agreements that are almost certain to follow.”

The justices held 8-1 in BNSF Railway Co. v. Tyrrell that employees claiming railroad-related injuries that occurred outside Montana could not sue for damages in the Montana courts. Amy Howe analyzes the opinion for this blog. Jurist’s Paper Chase blog also covers the opinion; another look comes from Todd Duffield and Hera Arsen at OgletreeDeakins’ eponymous blog. In The National Law Journal (subscription or registration required), Tony Mauro reports that this is the second case this month in which the court has “ruled in favor of nationwide corporations that are seeking to limit the number of jurisdictions where they can be sued.” At PrawfsBlawg, Howard Wasserman observes that the ruling means that “2000 miles of track and 2000 employees in Montana is not sufficient to make BNSF essentially at home, where it is incorporated and has its [principal place of business] elsewhere and where it does similar amounts of business in other states.” Additional commentary on the case at Prawfsblawg comes from Cassandra Robertson here and Stephen Sachs here.

Finally, in County of Los Angeles v. Mendez, the court ruled 8-0 that the Fourth Amendment does not support the U.S. Court of Appeals for the 9th Circuit’s “provocation rule.” Jurist’s Paper Chase blog provides an overview of the opinion. Lawrence Hurley reports on the ruling for Reuters, as do Cristian Farias for The Huffington Post and Sam Hananel for the Associated Press. In The New York Times, Adam Liptak reports that “the justices ruled that the appeals court had used the wrong standard in sustaining a $4 million judgment against two Los Angeles County sheriff’s deputies,” but that the court suggested that “the award might be sustained on a different theory.” David Savage covers the ruling for the Los Angeles Times, noting that “Tuesday’s opinion looks to be a compromise of sorts which rejects one approach, but leaves open the prospect that victims of police shootings may recover damages if the officers undertook an unreasonable search.” At Lock Law Blog, Ryan Lockman notes that Justice Samuel Alito’s “opinion closely tracks – and at one point is identical – to his language in a prior case from when he was on the Third Circuit.” At PrawfsBlawg, Daniel Epps notes that “the Court left the possibility open that the plaintiffs could still recover if the officers’ failure to secure a warrant … proximately caused the shooting,” but he foresees “some trouble down the road for civil-rights plaintiffs.”

At CNN, Ariane de Vogue reports that in “the coming days and weeks, the court will deal with two separate cases about partisan gerrymanders,” noting that the court “has never been successful in developing a test” for determining when a partisan gerrymander is impermissible. At Constitution Daily, Lyle Denniston reports that in one of the cases, from North Carolina, “the court told lawyers on both sides to file letters by June 6 discussing whether the voters who appealed had a legal right to challenge the map on partisanship grounds, and whether the trial court ruling was the kind that could not be appealed directly to the Supreme Court (as the voters are trying to do) but had to go through an appeals court first.” The editorial board of The New York Times argues that “because politicians can’t be trusted to draw maps that fairly represent their constituents,” “it’s up to the courts to step in and set clear rules.”

At Supreme Court Brief (subscription required), Tony Mauro reports on yesterday’s confession by the court “that it had almost drummed the wrong lawyer out of the Supreme Court bar.” At the Associated Press, Mark Sherman calls the mistake “a surprisingly sloppy piece of work for a court that sometimes debates the placement of a comma.” Will Baude comments on the episode at PrawfsBlawg.

At Take Care, Joshua Matz provides an in-depth analysis of the route by which cases challenging President Donald Trump’s executive order temporarily barring entry into the United States of foreign nationals from six majority-Muslim countries may reach the Supreme Court, concluding that “that it matters a great deal how and when the Supreme Court ultimately reviews the Muslim Ban.” At Politico, Richard Primus points out that “the travel-ban case offers [Justice Anthony] Kennedy the chance to overrule a widely reviled decision that has never been officially overruled: Korematsu v. United States.”


  • PrawfsBlawg is hosting a symposium throughout June on the court’s remaining cases and other court-related issues; guest authors include Will Baude, Daniel Epps, Leah Litman, Joe Miller, Andra Robertson, Stephen Sachs, Ian Samuel, Chris Walker and David Fontana.
  • At The George Washington Law Review’s On the Docket blog, David Levine and Thomas Kearns discuss the court’s decision in Midland Funding, LLC v. Johnson, in which the justices held that filing a time-barred claim in bankruptcy does not violate the Fair Debt Collection Practices Act.
  • At Just Security, Steve Vladeck urges the court to grant review in two Guantanamo military commission cases, arguing that “the time has long-since passed for the Supreme Court to settle the validity of the commissions’ jurisdiction.”
  • At Slate, Mark Joseph Stern remarks that although “Justices Elena Kagan and Samuel Alito are not (yet) buddies off the bench, they appear to be developing an amiably disputatious relationship in the vein of Ginsburg and Scalia.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (May. 31, 2017, 7:59 AM),