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Thursday round-up

At his eponymous blog, Lyle Denniston reports that “[a]dministration lawyers submitted their final written arguments at midday Wednesday” in the government’s bid to reinstate its temporary ban on entry into the U.S. by nationals from six Muslim-majority countries and that in “a new legal point, they sought to rely on a two-day-old ruling by the Justices to support their claim for vast power for the White House in national security actions.” Additional coverage of the government’s filing comes from Gary Gately at Talk Media News. At Take Care, Leah Litman maintains that “it doesn’t really matter whether the President issued the clarifying memorandum in response to the injunctions or possibility of mootness,” and that the “key point—and the problem for the administration—is that the entry procedures are not now, and perhaps were never formally linked to the government’s review of its entry procedures.” At Just Security, Marty Lederman points out that the government’s brief relies on the president’s “’national security judgment,’” but he argues that the president “merely issued a decree, complete with an ostensible ‘finding,’ manifestly designed solely to fulfill a campaign promise,” and that “[s]uch an ipse dixit does not a ‘national security judgment’ make–let alone one to which the Justices ought to afford significant deference.” At Constitution Daily, Scott Bomboy offers a rundown of the status of the litigation pending before the court and the issues in the cases.

In Democracy, Scott Lemieux discusses the court’s recent decision to review a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford, arguing that “[i]t is hard to see how districting that intentionally overrepresents one group of voters and underrepresents another can be constitutional under [the court’s] precedents” requiring that “legislative districts … be drawn to reflect a ‘one person, one vote’ standard.” At The American Prospect, Michael Li and Thomas Wolf maintain that “[a]lthough the courts have sometimes been hesitant to interfere with the political process, it turns out the problem is manageable,” because “it usually appears in places with a few key characteristics: single-party control of the mapping process and a roughly evenly split electorate.” In an op-ed in The Washington Post, Charles Lane agrees that “partisan districting creates anomalies and unfairness, breeding public cynicism about a ‘rigged system,’” but questions whether “the federal judiciary — meaning, ultimately, the Supreme Court — is the right institution to fix this.”

In The Economist, Steven Mazie reports that Matal v. Tam, in which the justices held on Monday that a ban on the registration of disparaging trademarks violates the First Amendment, “clarified that offensive or hateful speech falls squarely under the First Amendment umbrella.” At The Federalist, Ilya Shapiro argues that the ruling “boils down to the simple point that bureaucrats shouldn’t be deciding what’s ‘disparaging.’” At Balkinization, Marty Lederman offers a detailed critique of the two four-justice opinions in the case, concluding that “[p]erhaps a majority of the Court should have … simply held that the Constitution forbids the viewpoint-based manipulation of government subsidies when it is done—as the government concedes it was here—in an effort ‘to remove certain ideas or perspectives from a broader debate.’”

At Crime and Consequences, Kent Scheidegger considers Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, concluding that if “the approach of the four-Justice majority [three justices did not participate] is reaffirmed in the next case, then Bivens,” which allows such suits under certain circumstances, “is effectively frozen in ice.” At Lawfare, Steve Vladeck asks whether “[a]s a normative matter (that is, without regard to historical or doctrinal foundations), … Justice Kennedy’s case against judge-made damages remedies for constitutional violations [is] actually convincing.”


  • In The Washington Post’s Fact Checker column, Michelle Ye Hee Lee gives three Pinnochios to Justice Samuel Alito’s assertion in Packingham v. North Carolina that sex offenders have unusually high rates recidivism, finding the “reference to sex offender rearrest trends in Alito’s opinion is quite misleading.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jun. 22, 2017, 7:20 AM),