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Tuesday round-up

Today the court will hear oral argument in two cases. The first is Cyan v. Beaver County Employees Retirement Fund, which asks whether state courts have jurisdiction to hear Securities Act class action lawsuits under the Securities Litigation Uniform Standards Act. Ronald Mann previewed the case for this blog. Subscript offers a graphic explainer. At The Narrowest Grounds, Asher Steinberg unpacks the statutory language at issue in the case. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Today’s second argument is in Digital Realty Trust Inc. v. Somers, which involves the whistleblower protections of the Dodd-Frank Act. Theresa Gabaldon had this blog’s argument preview. For the Los Angeles Times, David Savage reports that the whistleblower in this case “faces a stiff challenge based on ‘textualism,’ the approach that has won favor with most of the justices, and none more so than new Justice Neil M. Gorsuch.” The George Washington Law Review’s On the Docket blog offers previews of all the cases in the December argument session.

Yesterday the justices issued orders from their November 21 conference, adding no new cases to their docket and declining to hear two challenges to state gun-control laws. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For The Daily Caller, Kevin Daley reports that the cert denials in the gun cases were “in keeping with [the court’s] recent reluctance to decide cases involving the Second Amendment,” which “has elicited criticism from diverse quarters.” Additional coverage comes from Jess Bravin for The Wall Street Journal and Robert Barnes for The Washington Post. At The Federalist, Margot Cleveland argues that by denying cert, the Supreme Court “declared the Second Amendment guarantees only a second-class right.” At Education Week’s School Law Blog, Mark Walsh reports on two more cert denials, in a case involving prayers at school-board meetings here, and in a challenge to the Mississippi state flag, which incorporates the Confederate battle flag and state laws that require the flag to be displayed near public schools, here.

Yesterday the justices heard argument in Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of inter partes review, a process used to determine the validity of existing patents. For USA Today, Richard Wolf reports that “[b]illions of dollars hang in the balance — a fact driven home by the presence of demonstrators outside the court, something usually reserved for high-profile civil rights and abortion cases,” and that the court “appeared deeply divided.” Additional coverage comes from Nina Totenberg at NPR, Andrew Chung at Reuters, Greg Stohr and Susan Decker at Bloomberg, and Adam Liptak for The New York Times. Commentary on the case comes from Hannibal Travis at PrawfsBlawg.

At The Economist’s Democracy in America blog, Steven Mazie looks at Carpenter v. United States, which asks whether the government must obtain a warrant for cell-site-location information, noting that if the justices conclude “that the Fourth Amendment does not serve as a bulwark against government access to an ever-expanding trove of data on the details of Americans’ daily lives, the trend toward disappearing privacy may receive a significant boost.” Additional coverage of Carpenter, which will be argued tomorrow, comes from Richard Wolf for USA Today and Mark Walsh for the ABA Journal.  Jordan Rubin and Kimberly Robinson discuss the case at Bloomberg BNA’s Cases and Controversies podcast.


  • At the Cato Institute’s Cato at Liberty blog, Roger Pilon responds to commentary critical of “the speech [Justice Neil] Gorsuch gave 11 days ago before some 2,300 Federalist Society members and friends at the society’s 35th annual convention.”
  • At Empirical SCOTUS, Adam Feldman analyzes data from 2005 to 2017 “on lower court dissents as well as on other aspects of appeals court cases that may signal the significance of these cases to justices,” such as “majority/dissenting pairs of judges with multiple cases reviewed by the Supreme Court.”
  • At The World and Everything in It, Mary Reichard discusses Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, with representatives of several groups that filed amicus briefs in the case.
  • More Perfect (podcast) tells the story of how a “then-lawyer at the ACLU named Ruth Bader Ginsburg set out to convince an all-male Supreme Court to take sex discrimination seriously with an unconventional strategy.”
  • At FiveThirtyEight, Oliver Roeder considers whether Chief Justice John Roberts “is beginning to fit the historical pattern, at least quantitatively, of an ideological defector.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 28, 2017, 7:10 AM),