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Thursday round-up

The justices heard two oral arguments yesterday. The first was in probable-cause and qualified-immunity case District of Columbia v. Wesby. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Subscript offers a graphic explainer for the case. Coverage of the argument in Wesby comes from Richard Wolf at USA Today, who reports that “after spending the first two days of their 2017 term tackling potential landmark cases on partisan gerrymandering and workers’ rights, perhaps the justices were ready to dig into a set of facts that included booze, drugs, strippers and a hostess named ‘Peaches,’” Lawrence Hurley at Reuters, and Jessica Gresko at the Associated Press. In The Washington Post, Ann Marimow uncovers the identity of the elusive hostess, “Peaches.”

Yesterday’s second argument was in Class v. United States, which asks whether a guilty plea waives a challenge to the constitutionality of an offense. In The Wall Street Journal, Jess Bravin reports that “Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues … in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain,” suggesting that “like [that of] his late predecessor, Justice Antonin Scalia, … Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.”

Yesterday, over the votes of three justices, the court also vacated a lower-court injunction that had put on hold the execution of an Alabama inmate. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Commentary comes from Kent Scheidegger at Crime and Consequences.

On Tuesday, the justices heard oral argument in Gill v. Whitford, in which they will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. At Take Care, David Gans suggests that, based on the tenor of the argument, “it seems that the Justices inclined to uphold partisan gerrymandering will face an uphill battle to convince Justice Kennedy that Wisconsin’s extreme partisan gerrymander can be squared with the First Amendment principles Kennedy holds dear.” Additional commentary on the argument in Whitford comes from Kent Scheidegger at Crime and Consequences, Cullen Seltzer at Sands Anderson’s eponymous blog, Asher Steinberg at The Narrowest Grounds, and Nicholas Stephanopolous, one of the attorneys for the plaintiffs, whose research forms a basis for the asymmetry metric they propose, at Slate. At the Election Law Blog, Rick Hasen speculates about whether the plaintiffs will ask the Supreme Court to lift its stay of the lower court’s order requiring the Wisconsin legislature to draw new districts by November, asking “why … Wisconsin voters [should] endure another election with an unconstitutional map, if we know where this thing is going to end up?”

Tuesday’s second argument was in Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings, which the justices scheduled for reargument at the end of October Term 2016. Kevin Johnson has this blog’s argument analysis. KQUED Radio (audio) features a discussion of the case; KPCC Radio (audio) offers a look at Jennings and at Monday’s reargued immigration case, Sessions v. Dimaya.

Commentary on Jesner v. Arab Bank, a case the justices will hear next week that asks whether corporations are liable under the Alien Tort Statute, comes from John Sherman in The Clarion, who argues that “legal liability for corporations does not impose an undue burden on responsible businesses, which already have a strong interest in managing their human rights risks.” At the ACS Blog, John Eubanks also weighs in on Jesner, asserting that “the statutory text and common law’s interpretation of tort liability” militate in favor of corporate liability to the victims of “violations of the law of nations such as terrorism, crimes against humanity, or even genocide.”


  • At Bloomberg BNA’s Cases and Controversies podcast, the editor of “Scalia Speaks,” a “new compilation of Justice Antonin Scalia’s speeches,” “underscores that the justice left behind much more than his written work.”
  • In an op-ed for The New York Times, Stephen Vladeck urges the justices to review Bahlul v. United States, a constitutional challenge to the post-9/11 military commissions, in order to help “settl[e] the structural legitimacy of the Guantanamo tribunals.”
  • In The National Law Journal (subscription or registration required), Tony Mauro reports that in a recent letter to several members of Congress who had requested live audio access to this week’s partisan-gerrymandering argument, the “Supreme Court appears to have to shut the door on livestreaming audio or video of its oral arguments for the foreseeable future.”
  • At Pacific Standard, Tom Jacobs looks at a recent study that “analyzed the transcripts of 3,583 oral arguments presented to the court over more than three decades” and found that “’female lawyers are interrupted earlier and more often, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to male lawyers.’”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Oct. 5, 2017, 7:19 AM),