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Tuesday round-up

Yesterday the Supreme Court added three cases to its docket for October Term 2017: National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge to a California law regulating pregnancy-crisis-center disclosures; Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places violates the First Amendment; and Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage of the three grants comes from Robert Barnes for The Washington Post. At Bloomberg, Greg Stohr notes that after the grants, all of which raise free-speech issues, “the nine-month term now features six cases, out of 44 total, that turn on the reach of the Constitution’s free speech guarantee.”

At Reuters, Lawrence Hurley reports that in NIFLA, the justices will decide “whether a California law requiring private facilities that counsel pregnant women against abortion to post signs telling clients how to get state-funded abortions and contraceptives violates free speech rights.” Additional coverage comes from Richard Wolf for USA Today, Ariane de Vogue at CNN, Adam Liptak for The New York Times, Greg Stohr at Bloomberg, Tony Mauro at The National Law Journal (subscription or registration required), Brent Kendall and Jess Bravin for The Wall Street Journal, and David Savage for the Los Angeles Times, who reports that “[t]he challengers say the disclosure law violates the 1st Amendment because it forces the faith-based pregnancy centers to send a message that conflicts with their aim of encouraging childbirth, not abortion.” At the Constitutional Law Prof Blog, Ruthann Robson notes that “[t]he Supreme Court’s decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.” Margot Cleveland summarizes the case in an op-ed for the Washington Examiner.

At Bloomberg, Greg Stohr reports on the grant in Minnesota Voters Alliance, noting that “Minnesota is one of at least 10 states with broad bans on political apparel at election sites, according to the challengers,” and that a “decision striking down those laws would mark a significant shift for the high court, which in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party.” Additional coverage comes from Ariane de Vogue at CNN, Alex Swoyer at The Washington Times, Richard Wolf at USA Today, and Andrew Chung at Reuters. At the Pacific Legal Foundation blog, Wen Fa contends that “Minnesota has created a speech-free zone at the polling place, and speech-free zones violate the Free Speech Clause of the First Amendment.”

At USA Today, Richard Wolf reports that in Lozman, the justices will decide “whether police or government officials can overcome citizens’ free speech rights when they have probable cause to make an arrest, no matter how minor the infraction.” At the Associated Press, Curt Anderson reports that the retaliatory-arrest claim at issue in Lozman “comes at a time of more frequent protests across the U.S. against the administration of President Donald Trump, over police race relations and divisive issues such as Confederate monuments.” Additional coverage comes from Monique Madan at the Miami Herald.

At Take Care, Leah Litman weighs in on the cert petition in Hargan v. Garza, in which the solicitor general has asked the justices to vacate a lower-court decision in favor of a pregnant undocumented teen who was attempting to obtain an abortion and to discipline the teen’s attorneys, arguing that “Hargan is just the latest but, by far, the clearest example of how this administration uses DOJ for political gain.” Summary Judgment (podcast) also features a discussion of the petition in Garza.


  • At the Daily Caller, Kevin Daley reports that Justice Elena Kagan’s belated recusal last week in a high-profile immigration-detention case “is the third time in as many terms that a justice participated in a case despite a clear conflict of interest.”
  • At Supreme Court Brief (subscription required), Tony Mauro reports that “[t]he U.S. Supreme Court, avowedly slow at adapting new technology, got the hang of it Monday on its successful first day of electronic filing for practitioners.”
  • At On Labor, Jonathan Harkavy explains why the denial of cert last week in a case raising “a hotly disputed aspect of employment arbitration law: Whether judges or arbitrators should decide whether class (or collective) arbitration is available when an arbitration agreement is silent on the subject,” may be “more telling – and ominous – than the average cert denial.”
  • At The World and Everything in It, Mary Reichard discusses the oral arguments in S. Bank National Association v. Village at Lakeridge, in which the court considered the appropriate standard of review for determining non-statutory insider status in a bankruptcy proceeding, and Artis v. District of Columbia, which involves the effect of a tolling provision in the federal supplemental-jurisdiction statute on litigants who want to pursue state-court claims after related federal claims have been dismissed.
  • At Truthdig, Bill Blum maintains that “several parties will share the blame” if the state of Alabama carries out the execution of Vernon Madison, whose habeas claim the Supreme Court denied last week in Dunn v. Madison.
  • At the WLF Legal Pulse, Jeffri Kaminski looks at Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of the tribunal that conducts inter partes review, a process used by the U.S. Patent and Trademark Office to analyze the validity of existing patents, concluding that “[r]egardless of how the Court rules, Oil States stands to make a substantial impact in the patent and technology communities.”
  • At Empirical SCOTUS, Adam Feldman examines how the parties in 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, are framing their arguments to “fight for Justice Kennedy’s vote.”
  • At Dorf on Law, Eric Segall maintains that in “Scalia Speaks,” a new compilation of the late justice’s speeches, “[w]hat you won’t get … is a defense of originalism that responds to, or even takes account of, the major objections to the doctrine that, sadly, Scalia never responded to while he was alive.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 14, 2017, 7:13 AM),