Tuesday round-up

EDITH ROBERTS OCT 31, 2017 7:20 AM

This morning the Supreme Court will hear oral argument in U.S. Bank National Association v. Village at Lakeridge, in which the justices will consider the appropriate standard of review for determining non-statutory insider status in a bankruptcy proceeding. Ronald Mann previewed the case for this blog. Axel Schamis and Katherine Van Bramer provide a preview for Cornell Law School’s Legal Information Institute.

Yesterday the court issued orders from its October 27 conference, but did not agree to hear any new cases. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court.

Yesterday the court also heard argument in two criminal-procedure cases. The first was Ayestas v. Davis, which involves the standards for funding an investigation establishing an ineffective-assistance-of-counsel claim in a capital case. Steve Vladeck has this blog’s argument analysis. Additional coverage of the argument comes from the Associated Press. In an analysis for The Washington Post, Brandon Garrett contends that “[t]he case goes to the core of what we expect our legal system to do: fully uncover the truth — on both sides — when the most serious criminal accusations are brought to court.” And in an op-ed for the Los Angeles Times, Erwin Chemerinsky weighs in on Ayestas, arguing that “[n]o one should face execution because they’re too poor to put on a defense.” Yesterday’s second argument was in Wilson v. Sellers, which asks when a federal court in a habeas case should “look through” a summary state-court ruling to review the last reasoned state-court decision.

At The Hill, Julia Manchester reports that in remarks before a group of aspiring public-interest lawyers last week, “Supreme Court Justice Ruth Bader Ginsburg revealed … that she does not plan on retiring anytime soon.” Andrew Hamm covered the event for this blog. Additional coverage comes from Jimmy Hoover at Law360 (subscription required).

At The Washington Post’s Volokh Conspiracy blog, Dale Carpenter summarizes an amicus brief he filed last week in Masterpiece Cakeshop v. Colorado Civil Rights Commission,  which asks whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, in which he and the brief’s co-author Eugene Volokh argue that “the Free Speech Clause does not protect a baker’s right to refuse [the same-sex couple’s] request because baking cakes is conduct that is neither historically nor inherently a form of protected speech.” At Take Care, another take on Masterpiece Cakeshop comes from Thomas Berg and Douglas Laycock, who filed an amicus brief focusing on the religion-clause issues in the case and who maintain that “[a]n objector … who raises a claim of conscience in the religiously significant context of a wedding should be protected as much as those on the other side of the culture war over marriage equality.”

Briefly:

• At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in two procedural cases, Hamer v. Neighborhood Housing Services of Chicago, in which the justices will decide whether appellate time limits are jurisdictional, and 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 Supreme Court Brief (subscription required), Tony Mauro reports that a California city prevailed yesterday in its effort to avoid Supreme Court review of a regulatory-takings case, in 616 Croft Ave., LLC v. City of West Hollywood, despite having declined to consent to the filing of amicus briefs in support of the cert petition, “an unusual move in Supreme Court practice, in part because it may convey that there’s something to hide.”
• At the Associated Press, Jessica Gresko reports on a new movie about “a 32-year-old [Justice Thurgood] Marshall, with one Supreme Court argument under his belt and more than a decade before his victory in the landmark Brown v. Board of Education case that outlawed segregation in public schools,” noting that Marshall’s son has said that “[t]he filmmakers faithfully captured his father’s sense of humor, his confidence and his mastery of the law.”
• At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and others urge the court to review a commerce-clause challenge to the listing of the Utah prairie dog as an endangered species even though, they argue, it “has no commercial value: there is no market for it—they make terrible pets—or any product made from it.”

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