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Tuesday round-up

This morning the Supreme Court will hear oral argument in Patchak v. Zinke, in which the justices will consider the separation-of-powers limits on Congress’ ability to direct the outcome of litigation. Ronald Mann previewed the case for this blog. Katherine Thibodeau and Shelby Garland provide a preview at Cornell Law School’s Legal Information Institute.

Yesterday the justices released the order list from their November 3 conference; they did not add any merits cases to their docket for the term, but they issued summary reversals of lower-court rulings in favor of the defendants in two habeas cases. Amy Howe covers the order list for this blog. For USA Today, Richard Wolf reports that in one of the summary reversals, Dunn v. Madison, the justices ruled “that an Alabama prisoner on death row for more than 30 years can be executed despite having no memory of his crime.” Additional coverage of Madison comes from Adam Liptak in The New York Times and Robert Barnes in The Washington Post, Alex Swoyer for The Washington Times, and Andrew Chung at Reuters. At Crime and Consequences, Kent Scheidegger weighs in on the other summary reversal, in Kernan v. Cuero, “another case of the Ninth Circuit failing to respect the limits Congress put on its authority to second-guess state court decisions in the Antiterrorism and Effective Death Penalty Act of 1996.”

Yesterday the Supreme Court also heard 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. Subscript offers a graphic explainer for the case. Additional coverage of Merit Management comes from Jimmy Hoover at Law360 (subscription required).


  • In an op-ed at Reuters, Scott Lemieux weighs in on 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, arguing that “[i]f the state of Colorado’s application of its laws is found to be unconstitutional, it would unleash a widespread assault on civil rights protections.”
  • In an op-ed for The Wall Street Journal, Sen. Mike Lee, R-Utah, and Jonathan Wood urge the court to review a challenge to the federal government’s authority to regulate Utah prairie dogs under the Endangered Species Act, asserting that “this species of prairie dog is found only in Utah, and it has no conceivable connection to interstate commerce” and that “[t]he Supreme Court and Congress should restore federalism to its rightful place and enforce the Commerce Clause’s intended limits.”
  • At Florida Court Review, John Cavaliere looks at the cert petition and stay application filed by Florida death-row inmate Patrick Hannon, whose execution is scheduled for Wednesday.
  • NFIB urges the justices to review Berninger v. Federal Communications Commission, a challenge to the FCC’s authority to institute net neutrality, which “highlights the absurdity of reflexively deferring to agency interpretations.”
  • At the Jackson Free Press, Arielle Dreher reports that “[t]he nine U.S. Supreme Court justices could decide the fate of the case against the Mississippi state flag this month,” when they consider whether to review an equal-protection challenge by a Mississippi municipal judge to the state’s inclusion of the Confederate battle emblem in its official flag.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 7, 2017, 6:54 AM),