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Wednesday round-up

Yesterday evening the Supreme Court vacated the ruling of the U.S. Court of Appeals for the 4th Circuit in Trump v. International Refugee Assistance Project, sending the case back to the lower court with instructions to dismiss it as moot. Justice Sonia Sotomayor would have dismissed the case as improvidently granted, leaving the ruling of the lower court in place. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Adam Liptak for The New York Times, Stephen Dinan for The Washington Times, Richard Wolf and Gregory Korte for USA Today,Robert Barnes for The Washington Post, and Lyle Denniston at his eponymous blog, who reports that a “separate case, from Hawaii, remains on the court’s docket, but the Administration has asked that it, too, be dismissed because the refugee restrictions – imposed for 120 days — are to expire on October 24.” Commentary comes from Kent Scheidegger at Crime and Consequences and Ilya Somin for The Washington Post’s Volokh Conspiracy blog, who remarks that “the legal battle over Trump’s  travel ban is far from over.”

Today the justices will hear oral argument in two cases. The first is National Association of Manufacturers v. Department of Defense, which will determine the venue for future Clean Water Act disputes. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter had this blog’s preview. Amanda Wong and Jared Ham preview the case for Cornell Law School’s Legal Information Institute; another preview comes from The George Washington Law Review’s On the Docket platform. Subscript has a graphic explainer for the case.

Today’s second argument is in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute. Amy Howe had this blog’s preview. Robin Grieff and Hillary Rich previewed the case for Cornell; On the Docket also offers a preview, and Subscript provides a graphic explainer.

Yesterday the justices heard oral argument in Hamer v. Neighborhood Housing Services of Chicago, in which they will decide whether appellate time limits are jurisdictional. Howard Wasserman has this blog’s argument analysis. Jimmy Hoover looks at all three cases on this week’s argument docket for Law 360 (subscription required).

The court also issued orders from its October 6 conference yesterday, requesting the views of the solicitor general in Apple, Inc. v. Pepper, which asks who qualifies as a “direct purchaser” and can file a private suit for damages under federal antitrust laws. Amy Howe has this blog’s coverage of yesterday’s orders, which first appeared at Howe on the Court. At the Washington Legal Foundation’s Legal Pulse blog, Glenn Lammi argues that, in the words of the WLF’s amicus brief, “[a]n expansion of Sherman Act standing to indirect purchasers would …’deter aggressive competition of the very sort that the antitrust laws are intended to encourage.’” At Fox News, Bill Mears reports that the court declined yesterday to review “the appeal of Usama bin Laden’s one-time assistant and propagandist, leaving intact his conspiracy conviction before a military tribunal.”


  • At the Election Law Blog, Christopher Elmendorf and Eric McGhee respond to Justice Neil Gorsuch’s complaint at last week’s oral argument in Gill v. Whitford “that the plaintiffs’ proposed test for unconstitutional gerrymanders was too much like a steak rub,” arguing that “[a]lthough Gorsuch might make an excellent steak rub, we don’t think his metaphor carries well to the evidence or proposed standards in this case.”
  • For the Associated Press, Emily Wagster Pettus reports that “[a]dvocates of same-sex marriage are asking the U.S. Supreme Court to strike down a new Mississippi law that lets government workers and business people cite their own religious objections to refuse services to LGBT people.”
  • At his eponymous blog, Ross Runkel looks at the cert petition in Evans v. Georgia Regional Hospital, which asks whether Title VII’s prohibition against discrimination based on sex extends to discrimination based on sexual orientation, noting that “[w]ith splits of authority, and with the obvious importance of the issue involved, this seems like an ideal case for the Supreme Court to decide.”
  • At Slate, Daniel Horwitz weighs in on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether public-sector unions may require non-members to help pay for collective bargaining, arguing that if the court rules against the union in this case, “unions should immediately challenge their obligation to represent free-riding nonmembers as a violation of their ownrights under the First Amendment[, … [a]nd they should win.”
  • At CNN, Joan Biskupic reports that Gorsuch “has shaken relations at the high court with actions that show — depending on one’s view — a degree of arrogance or independence,” and wonders “whether the new justice, who has staked out the far right of the bench, will push other conservatives to the left.”
  • At Empirical SCOTUS, Adam Feldman identifies the attorneys who argued most frequently, and had the highest success rates, in “all single vote margin decisions during the Roberts Court or since the beginning of the 2005 term.”
  • At the Human Rights At Home Blog, Justine Dunlap looks at Pavan v. Smith, in which the justices summarily ordered Arkansas to provide names of same-sex partners on birth certificates, calling the case “important for what it tells us about what the Court meant in Obergefell.”
  • At The Narrowest Grounds, Asher Steinberg unpacks Justice Neil Gorsuch’s dissent last term in Perry v. Merit Systems Protection Board, about the proper forum for “mixed” civil-service and employment-discrimination claims, noting that “[a]fter reading the dissent a half-dozen times, I still don’t know why he even thinks the statute ambiguous, much less why he thinks it means what it means.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Oct. 11, 2017, 7:09 AM),