Monday round-up
Amy Howe reports for this blog that the solicitor general’s office has performed an unusual about-face in National Labor Relations Board v. Murphy Oil USA, urging “the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.” At his eponymous blog, Ross Runkel notes that in an amicus brief filed last week in the case and two other consolidated cases, which will be heard next term, the “government has disowned the … NLRB’s 2012 D.R. Horton rule that class action waiver agreements are illegal because they deny employees the statutory right to engage in concerted activities for mutual aid and protection.”
Counting to 5 (podcast) looks at Justice Neil Gorsuch’s first opinion for the court, in Henson v. Santander Consumer USA Inc., in which the court held that the Fair Debt Collection Practices Act does not apply to debt buyers. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] At Jost on Justice, Ken Jost argues that although “the reviews are mostly good,” “[o]n close examination, the opinion is structurally flawed, legally simplistic, and unfortunate on policy grounds.”
Briefly:
- At his eponymous blog, Sheldon Nahmod discusses the Supreme Court’s rejection in County of Los Angeles v. Mendez of the U.S. Court of Appeals for the 9th Circuit’s “provocation rule” in Section 1983 excessive-force suits against police officers, noting that the court concluded that “the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation,” and that the “results in individual cases will turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined.”
- The Heritage Foundation’s Scotus 101 podcast features discussions of “Neil Gorsuch’s first opinion, other justices’ early opinions, and why the Supreme Court might hear the travel ban case this summer.”
- In an op-ed at Motherboard, Steve Vladeck discusses 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 “[i]f, as the lower courts concluded in Carpenter, we have no expectation of privacy in historical [cell-site location information], then the government could theoretically keep near-constant tabs on every American who uses a cell phone—a rather Orwellian proposition, even by today’s standards.”
- At PrawfsBlawg, Joe Miller looks at the “run of patent cases” at the Supreme Court since 1993, noting that “there is full Court agreement on largely unanimous rejection of Federal Circuit patent law decisions, even as it reviews those decisions more often,” and attributing this trend to “Legal Process reasoning ~ heavy reliance on stare decisis, and a keen appreciation for the different institutional roles that Congress and the courts play in providing settled ‘rules of the road.’”
- At the Election Law Blog, Rick Hasen observes that the court may decide as early as today not only whether to grant review in Gill v. Whitford, “the constitutional challenge to Wisconsin legislative districting as a partisan gerrymander,” but whether to “stay[] a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018”; he concludes that “[a]s with many of these things, I expect this comes down to what Justice Kennedy wants to do.”
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