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Tuesday round-up

Yesterday the Supreme Court agreed to hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. The justices also granted Wisconsin’s request for a stay of a lower-court ruling requiring the state to implement a new districting map by next fall. They summarily reversed an appeals court grant of habeas corpus relief to a criminal defendant in Jenkins v. Hutton, and they asked for the views of the solicitor general in a bankruptcy case. Amy Howe covers the orders list for this blog. At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler notes that Jenkins continues a recent “trend” in which “the Supreme Court has repeatedly reversed the 6th Circuit in habeas cases, often without oral argument.”

In The Washington Post, Robert Barnes reports on Gill, noting that the “Supreme Court has never found a plan unconstitutional because of partisan gerrymandering,” and that “[i]f it does, it would have a revolutionary impact on the reapportionment that comes after the 2020 election.” In USA Today, Richard Wolf reports that “[w]hat’s different this time from past Supreme Court clashes is the existence of data-driven models to measure election results against other factors.” At Bloomberg, Greg Stohr notes that in voting “5-4 along ideological lines in a separate order” to grant Wisconsin’s request for a stay, “the justices sent a signal they may be skeptical of the challengers’ arguments.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak in The New York Times, Josh Gerstein at Politico, Lydia Wheeler at The Hill, Andrew Chung at Reuters, Ariane de Vogue and Daniella Diaz at CNN, BBC News, Gary Gately at Talk Media News, Sam Levine at The Huffington Post, Cameron Joseph in The New York Daily News, and Patrick Marley in the Milwaukee Journal Sentinel.

At the Election Law Blog, Rick Hasen observes that the “stay order raises a big question mark for those who think Court will use the case to rein in partisan gerrymandering.” In The Atlantic, Hasen notes that Gill brings “the partisan gerrymandering beauty pageant” back “to the Supreme Court … for a limited engagement for an audience of one: Justice Anthony Kennedy.” At Think Progress, Ian Millhiser points out that the court postponed consideration of its jurisdiction over the case until it hears the case on the merits, “suggesting that many of the Court’s members think that federal courts do not have the power to hear gerrymandering cases.” More commentary and analysis come from Stephen Wolf in the Daily Kos, Vann Newkirk II in The Atlantic and Dylan Matthews at Vox.

In The Hollywood Reporter, Eriq Gardner reports that the court “has finally decided that it won’t review Lenz v. Universal Music Corp., a case examining the circumstances by which copyright holders can get into trouble when issuing takedown notices.” At Reuters, Lawrence Hurley reports on another cert denial, noting that the justices “handed a victory to Chevron Corp by preventing Ecuadorean villagers and their American lawyer from trying to collect on an $8.65 billion pollution judgment issued against the oil company by a court in Ecuador.” Additional coverage of the Ecuador decision comes from Devin Henry at The Hill.

The justices also issued five decisions yesterday. Mark Walsh has a “view” from the courtroom for this blog. In Matal v. Tam (formerly called Lee v. Tam), the court held that the disparagement clause of the Lanham Act, which governs the registration of trademarks, violates the First Amendment. Amy Howe has this blog’s opinion analysis; the blog is also hosting a symposium on the decision. At Politico, Josh Gerstein reports that “[t]he result in the closely-watched case could doom legal challenges to other trademarks many consider offensive, such as that for the Washington Redskins football team,” but notes that “no majority of the court agreed on precisely what legal standard to apply in the case.” Additional coverage comes from Fox News, Adam Liptak in The New York Times, Tony Mauro in The National Law Journal (subscription or registration required), Andrew Chung at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Gary Gately at Talk Media News, and Lyle Denniston at his eponymous blog. Commentary comes from Matt Ford in The Atlantic; Ilya Shapiro at the Cato Institute’s Cato at Liberty blog; Eugene Volokh at the Washington Post’s Volokh Conspiracy, here and here; Ruthann Robson at the Constitutional Law Prof Blog; Erica Goldberg at In a Crowded Theater; and the editorial board of The Washington Post.

In Packingham v. North Carolina, another First Amendment ruling, the court struck down a North Carolina law that barred sex offenders from accessing social-media sites that allowed minors to create accounts. Amy Howe analyzes the opinion for this blog. At his eponymous blog, Lyle Denniston reports that the “three Justices who did not support the main opinion agreed that the state law at issue ‘has a staggering reach’ and .. was invalid,” but “they voiced worry that the lead opinion, written by Justice Anthony M. Kennedy, had been ‘undisciplined’ in its discussion of how far the First Amendment goes to protect expression via the Internet.” Additional coverage comes from Mark Walsh at Education Week’s School Law Blog, Lawrence Hurley at Reuters, Richard Wolf at USA Today, Greg Stohr at Bloomberg, and Gary Gately at Talk Media News. Commentary comes from Ed Mannino at his eponymous blog, Stuart Benjamin at The Washington Post’s Volokh Conspiracy blog, Ruthann Robson at the Constitutional Law Prof Blog, and Ilya Shapiro in an op-ed in the Washington Examiner. Howard Wasserman and Rick Garnett look at both of today’s First Amendment decisions at PrawfsBlawg, here and here, respectively.

Yesterday’s third opinion was 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. This blog’s opinion analysis comes from Amy Howe. At Politico, Josh Gerstein reports that the majority held that “a suit for money damages in such circumstances could not proceed without authorization from Congress.” Additional coverage comes from Lyle Denniston at his eponymous blog, Adam Liptak at The New York Times, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Lawrence Hurley at Reuters, who reports that Justice Stephen Breyer “took the relatively unusual step of reading his dissent from the bench.”

At Dorf on Law, Michael Dorf observes that yesterday’s ruling in Abbasi makes it all but impossible for civil rights plaintiffs to sue federal officials for money damages.” In The Atlantic, Garrett Epps argues that the “verdict could have significant implications for  the case testing the Trump administration’s ‘travel ban’ barring entry of persons from six majority-Muslim countries, which just arrived in the court’s in-basket.” At Just Security, Steve Vladeck maintains that “Abbasi is perhaps the most important case the Court has decided so far this Term, and one of the most important it has handed down with regard to remedies for unconstitutional federal government conduct in decades,” “[a]nd [that] it’s terribly unconvincing, in the process.” At PrawfsBlawg, Howard Wasserman weighs in on the decision here, and Will Baude looks at Justice Clarence Thomas’ separate opinion, in which Thomas expressed “skepticism … about the doctrine of qualified immunity,” here.

In McWilliams v. Dunn, the court found that Alabama had denied a death-penalty defendant the expert mental-health assistance to which he was entitled under the standard the court established in Ake v. Oklahoma. Amy Howe has this blog’s opinion analysis. In The Wall Street Journal, Jess Bravin reports that the “5-4 decision, dividing largely along ideological lines, stopped short of declaring that defendants have a constitutional right to place such experts on their legal teams, the issue the court initially agreed to decide, leaving dissenters fuming that the majority flouted court rules to reach its consensus.” Additional coverage comes from Lawrence Hurley at Reuters, Richard Wolf at USA Today, Gary Gately at Talk Media News, and Adam Liptak at The New York Times. Commentary comes from David Alan Sklansky at Stanford Law School’s Legal Aggregate blog.

And in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the justices reversed a state court finding of specific personal jurisdiction over out-of-state plaintiffs in a multistate lawsuit.  Ronald Mann analyzes the opinion for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]  At Bloomberg, Greg Stohr reports that the decision “gave companies a new tool to defeat some legal claims.” Additional coverage comes from Andrew Chung at Reuters and Tony Mauro in The National Law Journal (subscription or registration required). At Mayer Brown’s Class Defense Blog, Andrew Pincus and others maintain that “the decision raises substantial questions about whether nationwide class actions can proceed in jurisdictions where a defendant is not subject to general jurisdiction.” PrawfsBlawg has commentary on the decision from Howard Wasserman here, Stephen Sachs here, and Cassandra Robertson here. Additional commentary comes from Walter Olson at the Cato Institute’s Cato at Liberty blog.


  • At Just Security, Marty Lederman weighs in on the entry-ban cases, offering “three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.”
  • At Empirical SCOTUS, Adam Feldman analyzes data from this term related to the frequency, duration and timing of the justices’ questions and comments at oral argument.
  • At Capital Appellate Advocacy’s Insights blog, Lawrence Ebner calls Justice Neil Gorsuch’s first opinion for the court last week “a model of both outstanding  judicial opinion writing and judicial restraint,” which, “if [it] is predictive of what is to come, … already vindicates President Trump’s selection.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jun. 20, 2017, 7:29 AM),