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Tuesday round-up

This morning the justices will hear 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 state-funded family-planning services, including contraception and abortion, and requires unlicensed centers to disclose that they do not provide medical services. Amy Howe had this blog’s preview. Madeline Horn and Conley Wouters preview the case for Cornell Law School’s Legal Information Institute. At NPR, Nina Totenberg reports that NIFLA “pits the right to know against the right of free speech.” At The Economist’s Espresso blog, Steven Mazie surveys the case. Commentary comes from Jessica Levinson at NBC News and Garrett Epps at The Atlantic, who observes that “[t]he background to this case is the simple fact that states ‘compel’ all kinds of professional, commercial, and medical speech to prevent misinformation, [a]nd speech to pregnant women about abortion may be the most regulated single kind of speech in America.”

Yesterday afternoon the justices rejected the request of Pennsylvania Republicans who had asked them to block implementation of new congressional districts after the earlier map had been invalidated under the state constitution as a partisan gerrymander. Amy Howe covers the order for this blog; her coverage first appeared at Howe on the Court. Additional coverage comes from Lyle Denniston at his eponymous blog, Richard Wolf for USA Today, Brent Kendall and Jess Bravin for The Wall Street Journal, Adam Liptak for The New York Times, Elena Schneider and Steven Shepard at Politico, Ben Kamisar at The Hill, Jonathan Lai and Liz Navratil at The Inquirer, Greg Stohr and Chris Dolmetsch at Bloomberg, Ariane de Vogue and others at CNN, Joseph Ax at Reuters, Pema Levy at Mother Jones, Sam Levine at HuffPost, and Robert Barnes for The Washington Post, who reports that “[i]t was the second time that the court declined to get involved in the partisan battle that has roiled Pennsylvania politics.” Commentary comes from Mark Joseph Stern at Slate and Rick Hasen at the Election Law Blog, who offers some possible explanations for why it took the justices so long to dispose of this request.

Yesterday the court granted certiorari in Nielsen v. Preap, which asks whether a noncitizen becomes exempt from mandatory detention if, after he has been released from criminal custody, immigration agents do not take him into immigration custody immediately. Amy Howe covers the order list for this blog; her coverage was first published at Howe on the Court. At Reuters, Lawrence Hurley reports that “[t]he case takes on added significance in light of the Trump administration’s decision to intensify immigration enforcement, with growing numbers of people expected to land in detention awaiting deportation.” Additional coverage of Preap comes from the Associated Press and from Greg Stohr at Bloomberg.

At Reuters, Andrew Chung reports that the court “rebuffed a direct challenge to the constitutionality of the death penalty, refusing to hear an Arizona contract killer’s argument that it amounts to impermissible cruel and unusual punishment and that American society has reached a consensus on the need to strike it down.” Additional coverage of the cert denial in Hidalgo v. Arizona comes from Kevin Daley at The Daily Caller, who reports that “four justices wrote separately to criticize Arizona’s capital sentencing process, which they strongly suggested is unconstitutional,” Tony Mauro at The National Law Journal (subscription or registration required), Adam Liptak for The New York Times, Richard Wolf for USA Today, Keri Blakinger at Chron, Howard Fischer at Capitol Media Services (via the Arizona Capitol Times), Pete Williams at NBC News, Melissa Quinn at the Washington Examiner, and Chris Geidner at BuzzFeed News. Commentary comes from Kent Scheidegger at Crime and Consequences.

For Capitol Media Services (via, Howard Fischer reports that the justices also “rejected the last-ditch plea by Attorney General Mark Brnovich to uphold a 2012 executive order by then-Gov. Jan Brewer to deny licenses to DACA recipients.” Additional coverage of this cert denial comes from Ariane de Vogue at CNN, Andrew Chung at Reuters, Melissa Quinn at the Washington Examiner, Mairead McArdle at National Review, and Morgan Gstalter at The Hill. At Education Week’s School Law Blog, Mark Walsh reports that the justices declined to review a case that asked “whether public school teachers have First Amendment free speech rights in the classroom.”

Yesterday the justices heard argument in Sveen v. Melin, which asks whether a state law that automatically nullifies the designation of a former spouse as a life-insurance beneficiary upon divorce violates the Constitution’s contracts clause. Amy Howe analyzes the argument for this blog; her analysis first appeared at Howe on the Court.

At ThinkProgress, Ian Millhiser argues that Benisek v. Lamone, a partisan-gerrymandering challenge by Republican voters to a congressional district in Maryland, “could potentially entrench gerrymanders and prevent lawmakers from acting in good faith to abolish them.” At the Election Law Blog, Edward Foley also weighs in on Benisek, maintaining that “insofar as extreme gerrymandering frustrates the biennial accountability of congressional elections that the Constitution contemplates, the Marbury duty calls upon the federal judiciary to invalidate that subversion of the constitutional design.”

For The New York Times, Adam Liptak looks at the solicitor general’s response to the Supreme Court’s request that the government weigh in on the cert petition in Sokolow v. Palestine Liberation Organization, a lawsuit filed by American families and victims of terrorist attacks in Israel, noting that “[i]n the end, the administration sided with the P.L.O.,” but “took no position on whether the plaintiffs’ legal arguments were correct.” In an op-ed at Fox News, Theodore Olson asks why “the Trump administration [is] now acquiescing in the evisceration of one of America’s most important counter-terrorism laws.” At Medium, Senator Chuck Grassley argues that “the Supreme Court has an institutional obligation to take up this case.”


  • At The World and Everything In It, Mary Reichard discusses the oral arguments in Lozman v. City of Riviera Beach, Florida, United States v. Microsoft Corp., and Minnesota Voters Alliance v. Mansky.
  • At The National Law Review, Ericka Johnson surveys Microsoft, which asks whether the Stored Communications Act allows the government to gain access from email providers to data that is stored overseas. [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 the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Aaron Barnes urge the justices to review Duquesne Light Holdings v. Commissioner of Internal Revenue, and to “clarify that no agency may use presumptions to penalize actions that are authorized by the express terms of that agency’s own regulations.”
  • For Religion News Service (via The State Journal-Register), Jack Jenkins looks at why The U.S. Conference of Catholic Bishops … sided with unions in Janus v. American Federation of State, County, and Municipal Employees, Council 31, submitting an amicus brief in support of public-sector unions and their right to collect money from nonmembers for collective bargaining. [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.]

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Mar. 20, 2018, 7:32 AM),