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Wednesday round-up

The justices will hear two oral arguments today. First on the argument docket is qualified-immunity case District of Columbia v. Wesby. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Simon Bord and Katherine Thibodeau preview the case for Cornell Law School’s Legal Information Institute. In The Washington Post, Ann Marimow reports that the case, which stems from a lawsuit seeking damages from the police for arrests on trespassing charges that were later dropped, calls for “[o]ne of the most buttoned-up institutions in the country” to “wrestle with the free-for-all culture of the house party” held by “a mystery hostess named Peaches.”

Today’s second argument is in Class v. United States, which asks whether a guilty plea waives a challenge to the constitutionality of an offense. Rory Little previewed the case for this blog. Another preview comes from Rick Titcomb and Vadim Belinskiy at Cornell.

Yesterday the court heard oral argument in two cases. The first was Gill v. Whitford, in which the justices will decide whether Wisconsin’s electoral maps are the product of an unconstitutional partisan gerrymander. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Also at this blog, Mark Walsh offers a “view” of the argument from the courtroom.

Additional coverage of the argument in Whitford comes from Richard Wolf at USA Today, Nina Totenberg at NPR, Lyle Denniston at his eponymous blog, Jess Bravin and Brent Kendall at The Wall Street Journal, Kevin Daley at The Daily Caller, Tony Mauro at (subscription or registration required), Steven Mazie at the Economist, Greg Stohr at Bloomberg, Adam Liptak and Michael Shear in The New York Times, Robert Barnes in The Washington Post, Ariane de Vogue at CNN, Patrick Marley for the Milwaukee Journal Sentinal (via USA Today), and David Savage for the Los Angeles Times, who reports that “a majority on Tuesday seemed to lean in favor of a potential landmark ruling that for the first time would limit politicians from entrenching their party in power by clever drawing of legislative or congressional district lines.”

Commentary on the argument comes from Rick Hasen at the Election Law Blog, Lisa Soronen at the National Conference of State Legislatures blog, Jessica Mason Pieklo at Rewire, Michael Bobelian at Forbes, Derek Muller at Excess of Democracy, Ruthann Robson at the Constitutional LawProfBlog, Ryan Lockman at Lock Law Blog, Edward Foley at Election Law @ Moritz, and Michael Parsons at Modern Democracy, who observes that “oral argument revealed … litigants who seem to agree on a key principle and Justices who seem to be revisiting the important parallels between racial and political gerrymandering case law.”

Yesterday’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. Subscript provides a graphic explainer for the case. At Reuters, Lawrence Hurley reports that a “majority of the justices appeared sympathetic to the idea that immigrants held long-term should be eligible for a hearing that would let them argue for their release[,] [b]ut the court’s conservatives seemed skeptical over whether such a hearing should be triggered automatically after six months, as a lower court had ruled.” At the ACLU Blog, Mark Hwang recounts the story of how he “received a bond hearing as result of the [lower] court decision in Jennings.”

On Monday, the justices heard argument in Sessions v. Dimaya, which asks whether a criminal-removal provision of the immigration laws is unconstitutionally vague. Kevin Johnson analyzes the argument for this blog.

At The Economist, Steven Mazie reports on Monday’s oral argument in Epic Systems v. Lewis, in which the court will decide whether labor laws forbid class waivers in employment contracts, observing that “[i]t appears that the ruling will turn on the vote of Neil Gorsuch, the oddly silent ninth justice whose votes as a circuit judge indicate his views match those of the president who tapped him for his seat.” At the eponymous blog of law firm Ogletree Deakins, Ron Chapman and Christopher Murray conclude that “[a]t this point, the only thing that is certain is that the Court is divided.” More discussion of the argument comes from Andrew Pincus at Mayer Brown’s Class Defense Blog and R. Scott Oswald at The Employment Law Group (reprinted from Law360), who suggests that “[e]ven for the conservative justices, it seemed, a complete shutdown of all concerted legal action, in all forums, would be too much.” At Bloomberg, Greg Stohr reports that “[i]n an unusual letter to the U.S. Supreme Court, the National Labor Relations Board’s general counsel said he gave a series of inaccurate answers” during the argument that “seemed to undercut his argument that workers must be allowed to press group claims even if they signed agreements to take disputes individually to arbitration.”

Commentary on the new Supreme Court term comes from Elizabeth Wydra in an op-ed for the Sun-Sentinel, David Gans at Balkinization, and Bill Blum at Truthdig, who observes that “[a]fter moving to the political center the past three terms, the Supreme Court is poised to take a turn back to the right in its new session,” and that the “big question is how abrupt and sharp the turn will be.”


  • At The Federalist, Margot Cleveland laments the Supreme Court’s refusal to review a case that asked “whether surrogate mothers and babies born to them have constitutional rights that trump state surrogacy laws” and that “screamed of the scandal underlying the surrogacy industry.”
  • At E&E News, Amanda Reilly reports that the Supreme Court on Monday “asked for the Trump administration’s views on Virginia’s moratorium on uranium mining, a sign that justices are interested in a mining company’s plea to overturn the ban,” but “otherwise declined to add several other environmental and energy petitions, including two fisheries cases, to its docket.”
  • At Law360 (subscription required), Jacqueline Bell and Christina Violante look at what may be the waning influence of the solicitor general’s office, noting that although “the solicitor general remains the most influential lawyer at the court, a growing group of specialty Supreme Court attorneys in private practice — many of whom have worked in the solicitor general’s office themselves — are testing the limits of that power and giving the office a run for its money.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Oct. 4, 2017, 7:17 AM),