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Monday round-up

On Friday, the court removed Salt River Agricultural Improvement and Power District v. Tesla Energy Operations Inc., which asks when a state or local government can appeal the denial of a motion to dismiss based on state-action immunity, from the March argument calendar, after the parties notified the clerk’s office of a potential settlement; the court indicated that the argument may be rescheduled for April. Eric Fraser covers the development for this blog. Subscript has a graphic explainer for the case. [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 respondent in this case.]

Rumors about Justice Anthony Kennedy’s possible retirement at the end of the term resurfaced late last week. At Politico, Burgess Everett reports that Dean Heller, “the most vulnerable Republican senator in the country,” predicted the retirement at an event in Las Vegas. Additional coverage of Heller’s remarks comes from Brandon Carter at The Hill, Robert Donachie at The Daily Caller and Christopher Brennan at the Daily News. At Salon, Matthew Rozsa notes that “it is not entirely clear whether Heller should be believed here,” because “[t]he embattled Republican .. may wish to see Kennedy step down so that the prospect of replacing the swing judge with a staunch right-winger … will inspire Republicans to turn out and vote.” At The New Republic, Matt Ford agrees that “[t]he only person who really knows if Anthony Kennedy will retire from the Supreme Court this summer is Anthony Kennedy,” but “that hasn’t stopped some Republicans from trying to nudge him out the door.”

At the Daytona Beach News-Journal, Mark Lane discusses Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim, concluding that “[i]f Lozman can be arrested on the mere suspicion that he just might get more excited as he proceeded, pretty much any critic can be thrown out of any public meeting anytime,” which “is a scary prospect.” The editorial board of the Tampa Bay Times also weighs in on Lozman, arguing that public officials should be able to differentiate between “sharp criticism” and “misconduct” by citizens.


  • At Stanford Law Review Online, Brian Galle discusses South Dakota v. Wayfair, in which the justices will reconsider a ruling that limits the ability of state and local governments to tax online retailers, arguing that although “original historical evidence I’ve collected suggests that the political economy premises on which Quill rests are fundamentally mistaken,” “that same evidence should lead the Court to keep in place the larger body of ‘Dormant Commerce Clause’ jurisprudence from which Quill first sprang.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
  • At Constitution Daily, Lyle Denniston considers some possible reasons for the Supreme Court’s inaction on an emergency motion in “[t]he high-profile constitutional fight in Pennsylvania over voting for Congress this year.”
  • At Jost on Justice, Kenneth Jost maintains that the court’s recent decision in Jennings v. Rodriguez, in which the justices held 5-3 (with Justice Elena Kagan recused) that immigration-law provisions do not give detained aliens a right to periodic bond hearings, “says less about partisan politics … than about the divide on the Court between the sterile textualism of the conservatives and the liberal justices’ whole-law approach to reading statutes.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Mar. 12, 2018, 7:13 AM),