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Wednesday round-up

Yesterday, in the wake of Monday’s ruling by the U.S. Court of Appeals for the 9th Circuit rejecting the administration’s bid to reinstate the president’s March 6 executive order temporarily restricting entry into the U.S. by travelers from six Muslim-majority countries and suspending the admission of refugees, the court ordered a new round of briefing on the government’s request for a stay of the ruling; briefing will be completed by noon on June 21, the day before the court meets for its final private conference of the term. Amy Howe covers these developments for this blog, as does Lyle Denniston at his eponymous blog, who notes that “if the court has any thought about ruling — before the summer recess — on any of the issues regarding the executive order, it would have to act with unusual dispatch.” At Lock Law Blog, Ryan Lockman discusses the 9th Circuit’s ruling, noting that it “was the first appeals court decision on either travel ban to address only the statutory arguments.”

At NPR, Nina Totenberg reports that in its decision Monday in Sessions v. Morales-Santana, in which the justices held that differential treatment of parents by gender in immigration law violates equal protection, “the court for the first time has applied the concept of gender equality to the nation’s citizenship laws.” At the Human Rights At Home Blog, Nancy Dowd explores the opinion’s “implications for how we think about fathers and fatherhood.” In an op-ed in The Boston Globe, Martha Davis observes that “[i]nstead of expanding access to citizenship by adopting the one-year standard for all, the opinion extends the ten-year physical presence to mothers as well as fathers,” so that after Morales-Santana,“[w]omen and men are equal, certainly, but unless and until Congress acts, women seeking citizenship for their foreign-born, out-of-wedlock children will be in a significantly worse position than they were previously.” At PrawfsBlawg, Richard Re raises several “critical questions” about the remedy in the case, concluding that “[w]ith so many controversial considerations swirling around, the Court may have deliberately curtailed its reasoning, hoping to do rough justice today while enjoying wiggle room tomorrow.” Also at PrawfsBlawg, Howard Wasserman argues that the case “shows the extent to which judicial supremacy has carried the day[:] The court can get away with an ‘order’ such as the one in Morales-Santana because it knows that Congress and the executive will follow its declarations of constitutional law.”

In Microsoft Corp. v. Baker, the justices ruled on Monday that federal courts lack jurisdiction to review an order denying class certification after the plaintiffs have voluntarily dismissed the case with prejudice. Ronald Mann analyzes the opinion for this blog. At Reuters, Alison Frankel reports that a concurrence in the case by Justice Clarence Thomas “shows at least three justices are still thinking about the standing of uninjured class members, just as plaintiffs in a case that raises the issue are about to file a response to a petition for Supreme Court review by Conagra Brands.”

In another Monday ruling, the court held in Amgen Inc. v. Sandoz Inc. that provisions requiring disclosure of information by an applicant for a biosimilar license are not enforceable by an injunction in federal court, and that an applicant may provide notice of commercial marketing before obtaining a license. John Duffy has this blog’s argument analysis. At Courthouse News Service, Dan McCue reports that the ruling “is expected to speed up how quickly generic drugs become available to consumers.”


  • Constitution Daily reminds us that “[i]t was 51 years ago [yester]day that the phrase ‘Miranda warning’ was born, after the Supreme Court ruled in a landmark case about the Fifth Amendment.”
  • At The Washington Post’s Volokh Conspiracy blog, Orin Kerr wonders how an originalist would rule in Carpenter v. United States, in which the court will decide whether the Fourth Amendment allows warrantless collection by the government of historical cell-site records; he suggests that “an originalist might plausibly conclude that the contents of communications are protected by the Fourth Amendment as the user’s ‘papers’ or ‘effects’ but that the business records of the company as to how those papers or effects were delivered would be the company’s records, not the user’s.”
  • At PrawfsBlawg, Howard Wasserman asks which “volume of United States Reports has the greatest number of canonical or important cases.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jun. 14, 2017, 7:18 AM),