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Monday round-up

At this blog, Amy Howe covers the Justice Department’s recent requests that the Supreme Court review an appeals court decision invalidating a portion of President Donald Trump’s executive order limiting travel from six majority-Muslim countries and that the court also lift two injunctions blocking enforcement of the order. Josh Gerstein reports in Politico that the court “is giving the challengers to President Donald Trump’s travel ban executive order more than a week to respond to the government’s emergency request to let the order take effect.” In The New York Times, Adam Liptak reports that the “court will probably hear the appeal,” but that the “stay applications present harder questions, and how the court answers them will have important practical consequences.” At Reuters, Lawrence Hurley reports that the “fight over the emergency application is likely to determine whether the ban ever takes effect,” “because if the court grants the request, the ban’s 90-day term will have expired by the time the court decides the legal fate of the proposal.” In The Economist, Steven Mazie observes that “as is so often the case, everything may turn on how Justice Anthony Kennedy sees the executive order.”

Marty Lederman argues at Just Security (cross-posted at Take Care) that “all of [the government’s] urgent briefing and pleas for expedition is rather beside the point, because by its own terms, the ‘entry ban’ expires less than two weeks from now.” Will Baude takes issue with Lederman’s reading of the executive order at PrawfsBlawg, arguing that “it isn’t obvious to me that the cases will all become moot in 12 days”; Lederman continues the debate at Just Security. At Slate, Mark Joseph Stern remarks that the government’s requests mean that “the Supreme Court guessing game is nearly over” and that the “justices now have an opportunity to show their cards, and their decision could soon revive a sweeping ban that many Americans likely assumed to be dead and buried.” At Vox, Dara Lind observes that the “most likely scenario, according to Supreme Court watchers, is that the Court rejects the administration’s requests for immediate stays but agrees to take up both the East and West Coast cases in September.” At In a Crowded Theater, Erica Goldberg considers “whether, and how, President Trump’s campaign statements should be considered when deciding the constitutionality of his travel ban.” At Legal Insurrection, William Jacobsen wonders how in “a case in which Trump’s campaign comments are front and center,” Justice Ruth Bader Ginsburg can “hear a case in which she has complained publicly about Trump and Trump’s campaign?”

In The New York Times, Adam Liptak reports that “Justice Neil M. Gorsuch, in his first public remarks since joining the Supreme Court in April, spoke forcefully on Friday about letting judges have the last word in assessing the constitutionality of government actions.” Additional coverage comes from Jess Bravin in The Wall Street Journal, who reports that Gorsuch also “decried the ignorance of schoolchildren, and the skepticism of their parents, regarding the U.S. constitutional system and said his own experience in the machinery of litigation should offer future generations confidence.”


  • At the Associated Press (via The Washington Post), Jessica Gresko reports that Justice Ruth Bader Ginsburg “is about to join the ranks of workout superstars with a book about her exercise routine” and that “‘The RBG Workout: How She Stays Strong … and You Can Too!’ is scheduled to be released Oct. 3, which happens to be the first week the court is in session after its summer break.”
  • At Promomarketing Magazine, Joseph Myers discusses a cert petition recently filed by the Pacific Legal Foundation that asks the justices to “alter apparel restrictions at Minnesota-situated voting locations.”
  • At PrawfsBlawg, Stephen Sachs maintains that the court’s opinion in personal-jurisdiction case BNSF Railway Co. v. Tyrrell “misdescribes the statute’s text,” relying on an unenacted version of the U.S. Code that “isn’t really law”; he suggests that “‘What’s the text?’ isn’t only a textual-integrity question, of the kind we might refer to philologists or historians; often the question we’re really asking is ‘what’s the law?,’ … [b]ut to answer that question, we really ought to get the words right in the first place.”
  • At Vinson & Elkins’ Lincoln’s Law Blog, John Elwood and others look at a new cert petition in a False Claims Act case.
  • At Rewire, Jessica Mason Pieklo and Ally Boghun note that the court’s decision last week to review Husted v. A. Phillip Randolph Institute, which asks whether Ohio’s process for removing voters from registration lists violates federal election laws, “has given pause to voting rights advocates,” because despite “recent wins against gerrymandering efforts inNorth Carolina and Virginia, voting rights have not fared well before the Roberts Court.”
  • At PrawfsBlawg, Carissa Hessick anticipates the court’s ruling in Sessions v. Dimaya, a void-for-vagueness challenge to an immigrant-removal statute, “hoping that the opinion in Dimaya will bring some clarity to this area of the law.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jun. 5, 2017, 7:18 AM),