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Monday round-up

The Supreme Court added seven cases to its docket on Friday, including the second partisan-gerrymandering case of the term, Benisek v. Lamone, a challenge by Republican voters to a congressional district in Maryland. Amy Howe covers the grants for this blog; her coverage was first published at Howe on the Court. Additional coverage comes from Robert Barnes for The Washington Post, Adam Liptak for The New York Times, and Jess Bravin for The Wall Street Journal, who reports that “[b]y taking the Maryland case, the court underscored that partisan gerrymandering isn’t the province of one party alone, but a tool that can be employed by either Republicans or Democrats to extend power when they hold the political advantage.” Commentary on the grant in Benisek comes from Rick Hasen at the Election Law Blog and Ruthann Robson at the Constitutional Law Prof Blog, who notes “several differences” between Benisek and the court’s other pending partisan-gerrymandering case, Gill v. Whitford.

On Friday the justices, ruling 5-4 on ideological lines, put on hold a set of lower-court orders requiring the government to review and potentially disclose numerous documents related to the decision to terminate the Deferred Action for Childhood Arrivals program, known as DACA. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Adam Liptak for The New York Times, Jess Bravin and Brent Kendall for The Wall Street Journal, Robert Barnes for The Washington Post, Kevin Daley at The Daily Caller, Bradford Betz for Fox News, Josh Gerstein at Politico, and Richard Wolf for USA Today, who reports that “[i]t was the second time in four days that the court has sided with the administration against immigration advocates.”

Commentary continues on 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. At The Federalist, Margot Cleveland suggests that, “[i]f Tuesday’s oral argument is any indication, the year-long anticipation for the Masterpiece Cakeshop Supreme Court showdown will result in a narrow opinion that provides little clarity in the continuing conflict between culture and religious liberty.” At Claremont Review of Books, Hadley Arkes maintains that if Justice Anthony Kennedy “is truly willing to carve out a space for the people who bear reservations about same-sex marriage, he could be taking the step that begins a critical scaling back in the reach of the Obergefell case.” At Jost on Justice, Kenneth Jost observes that “[w]ith many observers predicting a ruling for [the baker], the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.”


  • In an op-ed for The Detroit News, Kirsten Carlson weighs in on Patchak v. Zinke, which involves the separation-of-powers limits on Congress’ ability to direct the outcome of litigation, arguing that if Patchak’s “challenge is successful, the ability of the government to protect Indian lands and for tribes to preserve their traditions, build sustainable economies, and create economic opportunities for the larger community will be threatened.”
  • At the Cato Institute’s Cato at Liberty blog, Jay Schweikert looks at Currier v. Virginia, which asks what happens to a defendant’s double jeopardy protections when he consents to sequential trials for multiple, overlapping offenses; Schweikert asserts that “in today’s world of ever-expanding criminal codes and regulatory regimes, the government needs fewer, not greater, incentives for piling on theories of criminal liability.”
  • At Empirical SCOTUS, Adam Feldman examines empirical evidence suggesting that “this term [is] the Court’s slowest in recent years for releasing the first two orally argued decisions.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Dec. 11, 2017, 6:59 AM),