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Wednesday round-up

This morning the court hears argument in one case, Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places is facially overbroad under the First Amendment. Amy Howe had this blog’s preview. Michael Chou and Marissa Rivera preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer. At NPR, Nina Totenberg reports that “[e]very state has a law creating campaign-free buffer zones outside of polling places — laws the Supreme Court has long upheld,” and that today “the justices tackle similar, and even stricter laws, that bar “political” apparel inside polling places.” Andrew Chung reports on the case at Reuters. At Slate, Richard Hasen argues that “[t]he solution here is for state officials to train election workers to recognize political statements and apply the ban evenhandedly,” and that “[i]f there is any evidence of viewpoint discrimination—say against Tea Party messages at Democratic-leaning polling places—then it would be time to bring a new lawsuit challenging the law as applied on the ground.”

Yesterday the justices also issued three opinions, bringing their total for the term in argued cases to 11. In Jennings v. Rodriguez, the court held 5-3, with Justice Elena Kagan recused, that immigration-law provisions do not give detained aliens a right to periodic bond hearings. Kevin Johnson analyzes the argument for this blog, and Subscript offers a graphic explainer for the opinion. For The Wall Street Journal, Jess Bravin reports that the justices “threw out a lower-court decision affording bail hearings to thousands of noncitizens held in federal lockups while they appeal deportation orders.” At CNN, Ariane de Vogue and Daniella Diaz report that the ruling “avoided a judgment on whether the Constitution requires such hearings, returning that issue to an appellate court.” At The National Law Journal (subscription or registration required), Tony Mauro reports that Justice Stephen Breyer’s decision to read portions of his dissent from the bench “follows a long tradition of justices signaling their discontent with what the majority has done, and hoping that their dissent will plant a seed for future reconsideration.” Additional coverage comes from Nina Totenberg at NPR, David Savage for the Los Angeles Times, Lawrence Hurley and Andrew Chung at Reuters, Adam Liptak for The New York Times, Richard Wolf for USA Today, Greg Stohr Bloomberg, John Bowden at The Hill, Chris Geidner at BuzzFeed News, and Robert Barnes for The Washington Post, who reports that the case “has taken on added importance with President Trump’s order of a crackdown on immigration violations.” Commentary comes from Ian Millhiser at ThinkProgress.

In Merit Management Group v. FTI Consulting, a unanimous court held that for the purposes of the securities safe-harbor provision in the Bankruptcy Code at issue in the case, the only relevant transfer is the transfer the trustee seeks to avoid. Ronald Mann analyzes the opinion for this blog. Subscript has a graphic explainer here. And in Patchak v. Zinke, a divided court affirmed a lower-court decision that dismissed a lawsuit pursuant to a congressional statute. Subscript’s graphic explainer is here. At PrawfsBlawg, Howard Wasserman remarks that the court “conclude[ed] yet again that Congress’ power to ‘change the law’ to push pending litigation to its preferred conclusion is, in practice, unbounded.”

Yesterday the justices heard oral arguments in two cases. The first was United States v. Microsoft Corp., which asks whether the Stored Communications Act allows the government to gain access from email providers to data that is stored overseas. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. At Reuters, Lawrence Hurley and Dustin Volz report that the justices “wrestled with [the] dispute…, with some signaling support for the government and others urging Congress to pass a law to resolve the issue.” Additional coverage comes from Nina Totenberg at NPR, Richard Wolf for USA Today and from Bill Mears at Fox News, who reports that “[t]he justices as a group seemed to be grasping for a compromise that might allow government access to global email storage, while giving greater weight to the sovereignty concerns raised by other nations.” At at Wired, Louise Matsakis reports that “[a]s the fight over access to digital data takes places in the country’s courts, Microsoft has changed the way that it stores customers communications.” Andrew Keane Woods analyzes the argument at Lawfare.

Yesterday’s second case was Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim. For USA Today, Richard Wolf reports that “[w]hile nearly all the justices found little basis for Lozman’s treatment, they worried that a ruling in Lozman’s favor could cause problems for police who make more justifiable arrests — for felonies, say, or during riots.” Additional coverage of the oral argument in Lozman comes from Robert Barnes for The Washington Post, Nina Totenberg at NPR, Jessica Gresko at the Associated Press, Wanda Moore at WPBTV, Alex Daugherty for the Miami Herald, and Mark Walsh at Education Week’s School Law Blog, who reports that the case casts “a spotlight on conflicts during public comment periods that have increasingly bedeviled school boards as well.”

Court-watchers continue to focus on Monday’s argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the justices will decide whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At Constitution Daily, Scott Bomboy reports that “the Court’s newest Justice[, Neil Gorsuch,] is widely expected to have a big impact on the Court’s decision.” Additional coverage of the oral argument in Janus comes from Bill Mears at Fox News and Daniel Vock at Governing, and C. Ryan Barber at The National Law Journal (subscription or registration required), who focuses on “Gorsuch’s reticence” during the hearing. At The American Prospect, Joseph McCartin explores the “radical vision” of the “ideologically driven, anti-union law professor [who] originated the legal strategy behind this case.”  Tom Steyer weighs in on the case in an op-ed at The Guardian, as do Neera Tanden in an op-ed for USA Today, Sean McElwee at The Nation, Mark Joseph Stern at Slate, Bill Blum at The Progressive, and Alice O’Brien at ACSBlog, who asserts that, contrary to the suggestion of Justice Anthony Kennedy, teacher “tenure is a creature of state statutes, not collective bargaining agreements.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Beth Farmer analyzes Monday’s argument in Ohio v. American Express Co., which involves the application of antitrust law to credit-card-network anti-steering rules, for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.] At Law360 (subscription required), Jimmy Hoover reports that the court “appeared split on the legality of American Express Co.’s so-called anti-steering contracts for merchants … in a case the justices agreed could have major consequences for the antitrust world.”

At The Wall Street Journal, Jess Bravin reports on Monday’s grant in Madison v. Alabama, an Eighth Amendment challenge to the execution a death-row inmate who has dementia and cannot remember his crime, noting that “[w]hile Mr. Madison doesn’t claim insanity, his petition argues there is no practical difference when one suffers similar cognitive impairment through dementia.” Additional coverage comes from Ivana Hrynkiw at

Coverage continues of the court’s order on Monday denying the administration’s request for review of a district-court order blocking the termination of the Deferred Action for Childhood Arrivals program. At Constitution Daily, Lyle Denniston reports that “[i]n practical terms, the Justices’ action makes it seem highly unlikely that the legality of the President’s decision to end DACA will be decided in a final way by the Justices for many months.” At The Nation, Julianne Hing observes that “the legal battles are myriad and complex, and [Monday’s] action is just the beginning.”


  • At Governing, Keri Blakinger reports that the justices “on Monday turned down a legal claim over the secrecy surrounding Texas’ lethal injection practices and the possibility that aging death drugs could cause suffering.”
  • At his eponymous blog, Ross Runkel looks at New Prime Inc. v. Oliveira, a case the court agreed this week to hear that “will resolve an important question that arises under many arbitration agreements – whether it is for the arbitrator or for the court to decide the threshold question of whether the case will go to arbitration.”
  • Also at his blog, Runkel discusses another of this week’s grants, in Mount Lemmon Fire District v. Guido, in which the justices will decide whether the 20-employee minimum in the Age Discrimination in Employment Act applies to local subdivisions.
  • At LAWnLinguistics, Neal Goldfarb continues his lexographical analysis of the dueling opinions in Artis v. District of Columbia, which hinges on the definition of the word “toll” in a statute referring to limitations periods.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Feb. 28, 2018, 7:13 AM),