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Wednesday round-up

This morning the justices will hear oral argument in Upper Skagit Indian Tribe v. Lundgren, in which they will consider tribal immunity from state-court actions to adjudicate title to land. Ronald Mann had this blog‘s preview. Simon Bord and Katherine Thibodeau preview the case for Cornell Law School’s Legal Information Institute.

Yesterday the court held unanimously in Cyan v. Beaver County Employees Retirement Fund that the Securities Litigation Uniform Standards Act of 1998 did not strip state courts of jurisdiction to adjudicate class actions alleging only 1933 Securities Act violations or authorize removing such suits from state to federal court. Subscript has a graphic explainer for the opinion. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

The justices also heard oral argument yesterday 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 has this blog’s argument analysis, which first appeared at Howe on the Court. For The Washington Post, Robert Barnes reports that the “centers seemed to have a strong supporter in Justice Anthony M. Kennedy, who is normally the deciding vote when the court considers ideologically divisive issues.” Additional coverage comes from Jess Bravin for The Wall Street Journal, Steven Mazie at The Economist, Greg Stohr at Bloomberg, Kevin Daley at The Daily Caller, Nina Totenberg at NPR, Bill Mears at Fox News, Adam Liptak for The New York Times, and Richard Wolf for USA Today, who reports that “[e]ven some of the court’s liberal justices expressed concerns about the law, but they compared the requirement to Supreme Court-sanctioned laws requiring doctors performing abortions to advise women about alternatives.”

At ThinkProgress, Ian Millhiser predicts that “[t]hough there is a strong possibility that the Court’s decision will be narrow, the FACT Act is very likely to fall, potentially in a very lopsided opinion.” Rewire’s Boom! Lawyered podcast features a discussion of the oral argument. Another look at the argument comes from Ruthann Robson at the Constitutional Law Prof Blog. In an op-ed for The New York Times, Robert McNamara and Paul Sherman argue that “focusing on the abortion debate means missing out on the fact that a decision siding with the State of California could upend decades of First Amendment doctrine and threaten everything from the right to have conversations in a doctor’s office to the right to use math to criticize government officials.”


  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Matthew Larosiere look at Justice Clarence Thomas’ dissent from denial of cert on Monday in Garco Construction v. Secretary of the Army, which asked the court to reconsider two cases that require courts to defer an agency’s interpretation of its own regulations; they agree with Thomas that “[i]n declining to hear the case, the Court has ‘passed up another opportunity to remedy ‘“precisely the accumulation of governmental powers that the Framers warned against.”’”
  • For Capitol Media Services (via Payson Roundup), Howard Fischer reports that after Monday’s cert denial in Brewer v. Arizona Dream Act Coalition, “Arizona’s ‘dreamers’’ will keep their licenses to drive — at least as long as the Deferred Action for Childhood Arrivals program remains in existence.”
  • In an op-ed for The Times of Israel, Steven Frank weighs in on the solicitor general’s response to the Supreme Court’s request for its views on the cert petitionin Sokolow v. Palestine Liberation Organization, a lawsuit filed by American families and victims of terrorist attacks in Israel, arguing that “the Department of Justice’s refusal to defend an act of Congress specifically designed to protect United States citizens should be reconsidered at the highest levels of the Trump administration.”
  • In an op-ed for The Wall Street Journal, James Ely and Nick Sibilla suggest that by agreeing to decide Sveen v. Melin, a case that 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, “the justices may be signaling a willingness to restore the clause, which has fallen into disuse, to its historical vigor.”
  • At FiveThirtyEight, Amelia Thomson-DeVeaux observes that “[i]t’s been a big year for free speech at the Supreme Court,” and that “[w]hichever way the rulings come down this spring and summer, it’s almost certain that the winning side will include Chief Justice John Roberts, who has spent his 12-plus years at the helm of the high court quietly carving out a space as a prolific and decisive arbiter of free speech law.”
  • At Take Care, Leah Litman considers the cert petition in Williams v. Louisiana, which involves a claim that the prosecution failed to disclose exculpatory evidence, contending that “[i]f Louisiana cannot preclude defendants from relying on new substantive legal rules that are announced after trial, it also should not be able to preclude them from relying on post-trial-findings-of-fact that serve as necessary predicates for substantive legal rules.”
  • At Fa on First, Wen Fa talks about his experience as counsel for the petitioner in Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places is facially overbroad under the First Amendment.
  • At Crimmigration, Cesar Hernandez looks at Monday’s cert grant 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, noting that “[t]he Supreme Court will now weigh in on the breadth of detention power that Congress has granted to ICE,” which, “[g]iven the size of ICE’s detention system, … is an enormously important prospect.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Mar. 21, 2018, 6:55 AM),