Monday round-up
In USA Today, Richard Wolf reports on the status of the Justice Department’s request that the Supreme Court reinstate the executive order banning entry into the U.S. by nationals of six majority-Muslim countries, noting that the “justices could decide as soon as this week whether to overrule lower courts and let the travel ban go into effect temporarily, as well as whether to rule on its overall constitutionality,” and that although “the fight has raised questions about national security, presidential power and due process rights, what’s garnered the most attention has been whether Trump’s rants and tweets trump his actions.” At The Economist’s Espresso blog, Steven Mazie reports that “[b]y 3pm today, the ban’s challengers will file their response to the government’s plea, no doubt aiming their arguments towards the probable swing justice, Anthony Kennedy,” and that the “justices must then decide how to handle a historic showdown over executive power in the Trump era.” In an op-ed in The New York Times, Josh Blackman maintains that the “legality of the travel ban, which implicates the commander in chief’s core statutory and constitutional authority over national security, demands an immediate resolution by the Supreme Court — one way or the other” and that “[w]ith all the briefs scheduled to be filed [today], the court should follow its practice from previous urgent cases: Schedule argument for 10 days hence, with a resolution as soon as practicable.”
Briefly:
- In The Washington Post, Robert Barnes reports that the court could announce today whether it will review a lower court decision holding that Wisconsin’s “redistricting plan violated the Constitution’s First Amendment and equal rights protections because of partisan gerrymandering”; he explains that the case, Gill v. Whitford, “comes at a time when the dusty subject of reapportionment has taken on new significance, with many blaming the drawing of safely partisan seats for a polarized and gridlocked Congress.”
- In USA Today, Richard Wolf reports that even though President Donald Trump has been “so tough on the judicial branch of government that even the man he nominated to the Supreme Court, Justice Neil Gorsuch, has called such attacks”’disheartening,’” “all that may have to be put aside if Trump pays a visit to the Supreme Court [on Thursday] for Gorsuch’s official investiture ceremony — a meaningless but star-studded ritual in which the justices hold a special sitting of the court to welcome their newest member.”
- In The Economist, Steven Mazie looks at Carpenter v. United States, in which the court will decide next term whether the Fourth Amendment requires that the government obtain a warrant for historical records showing where a cell phone connects with towers, observing that the case calls on the justices to “puzzle over the implications of an 18th-century rule for a distinctly 21st-century reality.”
- Columbia Law School notes that “two recent scholarly articles by Jamal Greene … suggest that the impact of [Justice Neil] Gorsuch’s presumed originalism on the Court’s reasoning is likely to be modest” and that “even the impact that [Justice Antonin] Scalia himself was able to achieve, in imposing any kind of originalist stamp on the Court’s jurisprudence, has been greatly ‘overstated.’”
- At The George Washington Law Review’s On the Docket blog, Theresa Gabaldon discusses Kokesh v. Securities and Exchange Commission, in which the court held that a five-year statute of limitations applies to a claim for disgorgement in an SEC enforcement action; she calls “the methodology of the opinion” “downright disconcerting.”
- Counting to 5 (podcast) features discussions of the recent decisions in BNSF Railroad Co. v. Tyrrell and Impression Products, Inc. v. Lexmark International, Inc.; another episode focuses on racial-gerrymandering case Cooper v. Harris.
- At The Washington Post’s Volokh Conspiracy blog, Sam Bray points out that the “Supreme Court said two interesting things about equity [last] week”; he notes that “the takeaway from the court’s opinion” in an election-law case, North Carolina v. Covington, “was clear: injunctions are governed by equitable principles, in voting rights law just as elsewhere,” and that a footnote in another opinion, in Kokesh v. Securities and Exchange Commission, “suggests the ostensible remedy of disgorgement, at least as sought by the SEC, may be vulnerable.”
- In The National Law Journal (subscription or registration required), Tony Mauro reports that criminal-law expert and veteran “[d]eputy solicitor general Michael Dreeben, who has argued more than 100 cases before the U.S. Supreme Court,” will be assisting special counsel Robert Mueller with the Russia investigation.
- At Empirical SCOTUS, Adam Feldman catalogues the citations to merits and amicus briefs and law-review articles in Supreme Court opinions this term.
- At George Washington Law Review’s On the Docket blog, Andrew Michaels weighs in on the recent decision in Impression Products, Inc. v Lexmark International, Inc., in which the justices ruled that U.S. and overseas sales of a product extinguish the patentholder’s rights to sue for infringement, arguing that “[a]lthough the result is defensible, the Court does not offer much in the way of a nuanced defense,” but that “[i]nstead, the Court simplistically harps on the theme that items in commerce should not be encumbered by restraints, failing to grapple with the fact that patents in general provide such restraints,and will continue to do so after the Court’s ruling.”
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