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Thursday round-up

Yesterday the justices heard oral argument in two cases. The first was in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to  Clean Water Act rules. [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 E&E News, Amanda Reilly reports that “[t]he case is far from a slam-dunk for either side, but justices seemed more inclined to side with the industry group.”

Yesterday’s second argument was in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Additional coverage comes from Jess Bravin for The Wall Street Journal, Adam Liptak for The New York Times, Lawrence Hurley at Reuters, Robert Barnes for The Washington Post, Richard Wolf for USA Today, Tony Mauro at The National Law Journal (subscription or registration required), and Kevin Daley at The Daily Caller, who reports that the “Supreme Court appeared divided Wednesday as to whether a corporation could be sued in an American court for human rights violations, though signs of a compromise emerged during the argument.” Commentary on Jesner comes from the editorial board of The Wall Street Journal and from Thomas Pickering in an op-ed for The Hill, who argues that opening the door to corporate liability under the ATS “would leave relations with every country in the world a potential hostage to U.S.-based lawsuits.” At the Human Rights At Home Blog, Jena Martin suggests that the court may “further limit the use of the ATS” by “order[ing] re-arguments in the case, asking the parties to once again address the issue of extraterritoriality.” Stephen Vladeck and Julian Ku discuss the case in a Bloomberg Law podcast.

In The Wall Street Journal, Jess Bravin reports that “[d]ozens of businesses asked the Supreme Court on Wednesday to find that federal law bars discrimination based on sexual orientation,” “asking the court to hear the appeal of a lesbian who alleges discrimination at the Savannah, Ga., hospital where she worked as a security officer” and “putting companies including Apple Inc., Cigna Corp., Morgan Stanley and Viacom Inc. at odds with the Trump administration.” Additional coverage of the amicus brief in Evans v. Georgia Regional Hospital comes from Daniel Wiessner at Reuters, who reports that “[t]he companies said the lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in the 27 states that have not adopted their own such laws.”

At The Hill, Jacqueline Thomsen reports that “[a] top sociology group fired back at Supreme Court Justice John Roberts for referring to sociology as “’gobbledygook’” during the oral argument last week in partisan-gerrymandering case Gill v. Whitford. Ruthann Robson also takes note of the sociologists’ response at the Constitutional Law Prof Blog. At Vox, Matthew Yglesias suggests that proportional representation may offer a solution to gerrymandering, arguing that “[n]ot only does a proportionality mandate solve the problems of redistricting more elegantly, it solves the problem of judicial meddling with electoral mechanics much better” than “[m]athematical tools like the ‘efficiency gap.’”


  • At Bloomberg BNA, Jordan Rubin looks at four amicus briefs filed in support of the government in Carpenter v. United States, which asks whether the government must obtain a warrant before acquiring cell-site-location information from wireless carriers, that “question the factual and legal assumptions of the pro-Carpenter briefs.”
  • At National Review, Ilya Shapiro and Frank Garrison focus on two cases pending before the court that “revolve around one fundamental question: whether state legislatures can force workers into unwanted relationships with unions.”
  • At Supreme Court Brief (subscription required), Tony Mauro observes that “[r]ecent reports that new U.S. Supreme Court Justice Neil Gorsuch is ruffling the feathers of his colleagues, if true, would make him just the latest in a long line of novice justices who have had a rough landing at the nation’s highest court,” but notes that “if tradition holds, Gorsuch will evolve over time, retaining his individual style but perhaps with smoother edges.”
  • In an op-ed for The New York Times, Linda Greenhouse argues that the Trump administration’s recent rule allowing businesses to claim exemptions from the federal contraception mandate on religious or moral grounds “has played the Supreme Court justices for chumps.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Oct. 12, 2017, 7:23 AM),