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Monday round-up

Today, the first day of October Term 2017, the justices will hear two oral arguments. First on the docket is a trio of consolidated cases, Epic Systems v. Lewis, Ernst & Young LLP v. Morris, and NLRB v. Murphy Oil USA, in which the court will decide whether labor laws forbid class waivers in employment contracts. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Axel Schamis and Katie Van Bramer preview the case for Cornell Law School’s Legal Information Institute. Additional coverage of Epic Systems comes from Lawrence Hurley and Robert Iafolla at Reuters, who report that “[i]n an unusual twist, the administration will face off against an independent agency of the federal government, the National Labor Relations Board,” and from David Savage for the Los Angeles Times. The second argument today is in Sessions v. Dimaya, which the justices scheduled for reargument at the end of October Term 2016, and which asks whether a criminal-removal provision of the immigration laws is unconstitutionally vague. Kevin Johnson previewed the case for this blog. Kara Goad and Elizabeth Sullivan preview the case for Cornell. George Washington Law Review’s On the Docket blog offers a preview of all the cases the justices will hear this week.

Anyone looking for one last preview before the term begins has a wide array of options. They include offerings from Robert Barnes in The Washington Post, Adam Liptak in The New York Times, WBUR’s On Point (audio), Lawrence Hurley at Reuters, Nina Totenberg at NPR, Ariane de Vogue at CNN, Scott Bomboy at Constitution Daily, and Jess Bravin in The Wall Street Journal, who reports that the term begins “with a conservative majority and a docket filled with longtime conservative goals to go with it.” At Fox News, Bill Mears reports that “the prospect of a resignation or two adds an extra layer of drama and unpredictability surrounding the session that kicks off” today. Commentary on the new term comes from Jessica Mason Pieklo in Rewire.

At Yahoo News, Roger Parloff reports that the court’s decision whether to “wade into the inherently political quagmire of district mapping” in Gill v. Whitford “will likely hinge on whether, in its view, advances in technology have changed the landscape since it declined to do so in” another partisan-gerrymandering case 13 years ago. At Election Law @ Moritz, Edward Foley explains why Whitford “looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.” At The Atlantic, Garrett Epps finds echoes of past justices in the case, arguing that the modern democracy shaped by the court’s 1962 decision in Baker v. Carr “is now threatened by the creativity of partisan hackery,” and that Whitford “will show us whether the Roberts Court has the intelligence to find a remedy, and the courage to apply it.” In an op-ed for The Hill, Carolyn Shapiro warns that “[i]n the absence of constitutional and judicially-enforceable limitations on partisan gerrymandering, it is well within the realm of possibility that constitutional amendments, or even an entirely new constitution, could be enacted despite a lack of popular support.”

For the Deseret News, Kelsey Dallas highlights the amicus briefs filed in support of the baker who declined to create a wedding cake for a same-sex wedding in Masterpiece Cakeshop v. Colorado Civil Rights Commission, noting that “several of the briefs argue that the Supreme Court has already showed its hand on the issue at stake, when it referenced respect for religious diversity in its 2015 same-sex marriage ruling.” At Take Care, Jim Oleske argues that the court should “bring its free exercise doctrine into parity with its free speech doctrine” by “providing a floor of modest protection against incidental burdens without requiring religious exemptions that – like the one sought in Masterpiece – would interfere with substantial state interests, such as ensuring equality of treatment in the marketplace.”


  • For this blog, Andrew Hamm covers the Red Mass in Washington, “a Roman Catholic liturgy held annually the Sunday before the Supreme Court’s new term to invoke God’s blessing on those responsible for the administration of justice,” which five justices and the solicitor general attended yesterday.
  • The Heritage Foundation’s SCOTUS 101 podcast features a discussion of the latest grants and “the fate of the travel ban.”
  • At Jost on Justice, Kenneth Jost argues that Justice Neil “Gorsuch has fed the partisan reaction to his confirmation with his votes and opinions as justice and ethically dubious public appearances off the bench.”
  • At Empirical SCOTUS, Adam Feldman cites the experience of the oral advocates and amici in the cases on the October argument docket as evidence that “the justices are taking on a set of potentially more contentious cases with far reaching political implications” after having considered a “non-divisive set of cases during the 2016 term.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Oct. 2, 2017, 7:18 AM),