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Monday round-up

The second week of the March argument session begins this morning with oral arguments in two cases. The first is United States v. Sanchez-Gomez, in which the justices will consider limits on appellate jurisdiction and mootness in the context of a challenge to a federal court district-wide policy of shackling defendants for most nonjury proceedings. Howard Wasserman previewed the case for this blog. D.E. Wagner and Leonardo Mangat have a preview at Cornell Law School’s Legal Information Institute; Subscript provides a graphic explainer for the case.

Today’s second argument is in China Agritech v. Resh, in which the court will decide whether the rule tolling the statute of limitations for individual actions filed after a failed class action also applies to subsequent class actions. Ronald Mann had this blog’s preview. Fred Titcomb and Vadim Belinskiy preview the case for Cornell. At The National Law Review, Jay Varon and Jennifer Keas note that China Agritech “has the potential to clarify a long-standing split among the circuit courts of appeals on the propriety and wisdom of permitting class action stacking.” Subscript’s graphic explainer is here. [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.]

At Reuters, Lawrence Hurley reports that in Benisek v. Lamone, a partisan-gerrymandering challenge by Republican voters to a congressional district in Maryland, “[t]he novel legal theory … is that Republican voters were retaliated against by Democrats based on their political views.” At the Election Law Blog, Edward Foley wraps up his series of essays on the case, suggesting that “[w]ithout prejudging the merits of the issue, … the opinion of the Court (or for one or more Justices) in Benisek could invite the development of arguments on whether Article I, or specifically its Elections Clause, requires different analysis than the Fourteenth Amendment (including its incorporation of the First Amendment).” Also at the Election Law Blog, Richard Pildes suggests that “it’s  helpful to figure out whether the First Amendment challenge treats partisan gerrymandering more like racial gerrymandering or like racial vote dilution,” because “[d]oing so clarifies what the key elements of proof ought to be, what the nature of the asserted constitutional harm is, and what the consequences are likely to be from adopting one way or the other of understanding a purely First Amendment challenge to partisan gerrymandering.”

At The New Republic, Matt Ford reports that by including a statute that “would rewrite the rules for how U.S. tech companies deal with law-enforcement requests for data across international borders” in the omnibus spending bill that passed on Friday, “Congress may have just nixed [United States v. Microsoft Corp.,] a Supreme Court case on digital privacy. In an op-ed for Fox News, Curt Levey points out that during oral argument in Microsoft, “most of the justices made it clear that the question before them was better left to Congress.” [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.]


  • At CNN, Tal Kopan reports that “Gold Star father Khizr Khan wrote a personal appeal to the Supreme Court on Friday to strike down President Donald Trump’s travel ban, using his family’s story to argue the ban is unconstitutional and ‘desecrates’ his son’s sacrifice.”
  • For The Washington Post, Robert Barnes explains that when Justice Anthony Kennedy chided Justice Sonia Sotomayor at oral argument last week for consulting a website, “Kennedy insinuated that Sotomayor had violated some universally accepted Supreme Court procedure by invoking facts found outside the record,” but “the rule seems to be that justices don’t like other justices doing such research.”
  • At National Review’s Bench Memos blog, Jim Campbell suggests that “[i]n addition to what Kennedy said at oral argument” in National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that requires licensed centers to post notices to inform patients about the availability of publicly funded family-planning services, including contraception and abortion, and unlicensed centers to disclose that they do not provide medical services, “insight as to his views may be gleaned from what he wrote in an abortion-speech case decided nearly two decades ago, “ because both cases “involve governmental efforts to interfere with conversations about abortion at a critical time — right when women are in the midst of considering that option.”
  • At Jost on Justice, Kenneth Jost discusses “the myth-puncturing critique of [the late justice Antonin] Scalia’s career that law professor Richard Hasen dishes out in his new book The Justice of Contradictions.”
  • At The Yale Law Journal, Adam Steinman offers a framework for analyzing the issue in Hughes v. United States, in which the court will consider “how to determine the precedential effect of decisions with no majority opinion.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Mar. 26, 2018, 7:31 AM),