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Monday round-up

This morning the Supreme Court will hear oral argument in Merit Management Group v. FTI Consulting, which asks when a bankruptcy trustee can unwind transactions made by or to a financial institution. Ronald Mann previewed the case for this blog. Connor O’Neill and Abigail Yeo provide a preview at Cornell Law School’s Legal Information Institute.

On Friday, the U.S. government filed a cert petition asking the justices to vacate a ruling of the U.S. Court of Appeals for the District of Columbia Circuit in favor of a pregnant undocumented teen seeking an abortion, and to discipline the American Civil Liberties Union attorneys representing the teen for allegedly misleading the government into delaying a request for a stay of the ruling until after the abortion had been performed. Amy Howe covers the petition for this blog. Additional coverage comes from David Savage for the Los Angeles Times, Ariane de Vogue at CNN, Adam Liptak for The New York Times, Lawrence Hurley at Reuters, and Robert Barnes and Ann Marimow for The Washington Post, who call the petition “a highly unusual filing reflecting the pre-eminence of abortion politics.” At his eponymous blog, Lyle Denniston reports that “Texas state officials, who strongly oppose abortion, are expected to enter the case now in the Supreme Court to urge the Justices to rule that a non-citizen who has entered the country illegally does not have a constitutional right to terminate a pregnancy.” In an op-ed for the Washington Examiner, Margot Cleveland decries the ACLU’s “appalling … gaming of the judicial system.”


  • At this blog, Andrew Hamm covers a Supreme Court Historical Society event examining the life and legacy of Justice Robert Jackson.
  • The Associated Press reports that Justice Sonia Sotomayor “is working on three books for young people,” including an adaptation of “her best-selling memoir ‘My Beloved World’ for middle-graders.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Aaron Barnes urge the justices to review Berninger v. Federal Communications Commission, a challenge to the FCC’s authority “to institute ‘net neutrality’—by issuing a new policy cloaked in an Orwellian title; the ‘Open Internet Order.’”
  • At Jost on Justice, Kenneth Jost weighs in on last week’s oral argument in on Ayestas v. Davis, a case that examines the standards for a government-funded investigation in a capital habeas case and which “illustrate[s] the importance of the court’s continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as ‘the machinery of death.’”
  • At Empirical SCOTUS, Adam Feldman examines data from the 13 oral arguments to date this term “to categorize how justices’ names are mentioned during oral argument” and to explore whether and when these references might serve a strategic purpose.
  • At The Narrowest Grounds, Asher Steinberg takes a close look at Digital Realty Trust Inc. v. Somers, which involves the whistleblower protections of the Dodd-Frank Act, focusing on a “particular textualist problem”: “statutory definitions that seem to make a peculiar meaning out of uses of the defined terms to which they apply.”
  • In an op-ed available at, Terry Goddard, a former Arizona attorney general, argues that Hidalgo v. Arizona, a cert petition challenging Arizona’s death-penalty scheme and the death penalty nationwide,“raises serious questions about the death penalty that the Arizona Legislature needs to come to grips with.”
  • NFIB urges the justices to grant a cert petition challenging the protection of the Utah prairie dog under federal Endangered Species Act regulations, arguing that “the Tenth Circuit’s decision below would uphold literally any act of federal regulation” under the commerce clause.
  • For The New York Times, Adam Liptak notes that 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, “has tested deep and longstanding commitments to free speech, and it has divided old allies.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Nov. 6, 2017, 6:59 AM),