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Tuesday round-up

Yesterday the justices added two cases to their merits docket for next term and asked for the views of the solicitor general in one case. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court.

The court also issued opinions in two cases yesterday. The first is Texas v. New Mexico, an original-jurisdiction case in which a unanimous court held that the United States can pursue claims against New Mexico for violation of the Rio Grande water compact. Ryke Longest has this blog’s opinion analysis. Subscript offers a graphic explainer for the opinion. At The Daily Caller, Kevin Daley reports that “[t]hough the ruling was limited to the facts at hand, the Court has now opened the door to federal intervention in agreements between the states, known as interstate compacts.”

In U.S. Bank National Association v. Village at Lakeridge, in another unanimous opinion, the justices held that the court of appeals was right to defer to the bankruptcy court’s determination of non-statutory insider status. This blog’s opinion analysis comes from Ronald Mann. Subscript’s graphic explainer is here.

For The Wall Street Journal, Jess Bravin reports that “[t]he Trump administration on Monday urged the Supreme Court to expand states’ authority to collect sales tax on internet transactions, joining a chorus of state officials seeking to overrule a 1992 precedent exempting many online retailers from having to add taxes to a consumer’s final price.” At OUPblog, Edward Zelinsky discusses the current case, South Dakota v. Wayfair, arguing that “the Supreme Court should overrule Quill in the Court’s role as guardian of the states against federal commandeering.” [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 NPR, Nina Totenberg surveys the Supreme Court’s Second Amendment jurisprudence. In an op-ed at The Hill, Lawrence Friedman reflects on the court’s recent cert denial in Silvester v. Becerra, a challenge to California’s 10-day waiting period for firearms purchases, suggesting that “this is simply not the right time for the Supreme Court to step into debates about the Second Amendment’s scope.” In an op-ed at Fox News, Adam Carrington finds the justices’ reluctance “to rule on the constitutionality of gun regulations in a systematic fashion” “both strange and problematic.”


  • At Constitution Daily, Lyle Denniston reports that “[t]wo prominent leaders in Republican politics have urged the Supreme Court to consider the Pennsylvania redistricting case as a part of this year’s intense political battle for control of the U.S. House of Representatives – an issue outside the constitutional issues at stake.”
  • For The New York Times, Adam Liptak observes that the advancing age of death-row inmates is affecting the Supreme Court’s death-penalty jurisprudence, as “[t]he court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.”
  • At CNN, Joan Biskupic reports that “[o]ver the past year, the Trump administration has reversed the US government’s legal position on voting rights and election law, on the arbitration of workplace disputes, labor union power, and protections for gay and transgender people,” potentially affecting several pending Supreme Court cases.
  • At the Yale Journal on Regulation’s Notice & Comment blog, Jennifer Mascott looks at the federal government’s brief in Lucia v. Securities and Exchange Commission, in which the solicitor general “contends that the Court should revisit ALJ tenure protections that are too robust and insular[] to provide meaningful supervision under Supreme Court precedent”; she suggests that “there are reasons to reconsider the claim that the existence of an expert corps of agency adjudicators necessitates nearly impervious removal protections.”
  • At The World and Everything In It (podcast), Mary Reichard discusses the recent oral arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, the high-profile union-fees case, and Dahda v. United States, in which the justices considered how broadly to read a statute requiring the exclusion of a wiretap order that exceeds a judge’s territorial jurisdiction.
  • At The George Washington Law Review’s On the Docket blog, Cori Alonso-Yoder considers Jennings v. Rodriguez, in which the court held that immigration-law provisions do not give detained aliens a right to periodic bond hearings but remanded the case for the lower courts to consider whether the provisions are constitutional, concluding that “the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement.”
  • At the Cato Institute’s Cato at Liberty blog, Jay Schweikert urges the justices to review a cert petition that will allow it to “reconsider its misguided qualified immunity jurisprudence,” which, he argues, “lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.”
  • In an op-ed at the Washington Examiner, Jay Hobbs weighs in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services; he asserts that “[a]mong its many and obvious flaws, the act accepts as gospel truth the false narrative from NARAL that pregnancy centers mislead women.”
  • In an essay available at SSRN, Michael McConnell considers 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; he maintains that although “[s]ome may say that [a decision in favor of the baker] prioritizes one right over another – the right of freedom of speech, or perhaps the freedom of religion — over the right not to suffer invidious discrimination,” such a decision would instead “put these rights on an equal plane.”
  • At Excess of Democracy, Derek Muller tries to determine which recent justices “attract the most academic attention,” concluding that “Justice Scalia dwarfs all others, which was not surprising.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Mar. 6, 2018, 7:07 AM),