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Wednesday round-up

This morning the Supreme Court wraps up the March session by hearing oral argument in Benisek v. Lamone, a high-profile partisan-gerrymandering challenge by Republican voters to a Democratic-leaning congressional district in Maryland. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Axel Schamis and Katherine Van Bramer preview the case at Cornell Law School’s Legal Information Institute. Constitution Daily also offers a preview, and Subscript provides a graphic explainer.

For The Washington Post, Robert Barnes reports that Benisek and another partisan-gerrymandering case challenging Republican-drawn maps in Wisconsin that was argued in October, Gill v. Whitford, “hold the prospect that the court is on the brink of a historic change in the way elections are conducted in the United States.” At NPR, Nina Totenberg observes that “it could be that optics are part of the reason the court added a second partisan gerrymandering case to its docket, so that in one case, the Republicans could prevail, and in the other, the Democrats could.” Steven Mazie takes a quick look at Benisek for The Economist’s Espresso blog. For the ABA Journal, Mark Walsh explains how “the math community is responding, belatedly, to an invitation from Justice Anthony M. Kennedy to apply technical or scientific abilities to the issue of gerrymandering, more specifically partisan gerrymandering.” At Take Care, David Gans argues that “[u]nder our Constitution, it is the Supreme Court’s responsibility to check state electoral abuses and ensure that voters choose their representatives, not the other way around.” At The Atlantic, Garrett Epps wonders whether Benisek “may be on the docket because it offers—for good or ill—a chance for the justices to come out against gerrymandering without messing with numbers.”

Yesterday the court issued one opinion, holding unanimously in Hall v. Hall that when one of a group of consolidated cases is decided, the losing party can appeal immediately. Howard Wasserman analyzes the opinion for this blog. Subscript’s graphic explainer is here.

Yesterday the justices also heard oral argument in two cases. At The National Law Journal (subscription or registration required), Tony Mauro reports that the dispute in Hughes v. United States, which involves how to determine the precedential effect of Supreme Court decisions with no majority opinion, “was over the meaning of Freeman v. United States, a 2011 sentencing decision, where lower courts are split over whether Justice Sonia Sotomayor’s solo concurrence should be the controlling opinion.”

Yesterday’s second argument was in Koons v. United States, which asks whether defendants who were subject to statutory mandatory minimum sentences, but received shorter prison terms because they provided substantial assistance to the government, were eligible for sentence reductions after the Sentencing Commission lowered the guidelines range that would have applied without the statutory minimum. Douglas Berman analyzes the argument for this blog.

Howard Wasserman has this blog’s analysis of Monday’s oral argument in United States v. Sanchez-Gomez, in which the justices considered 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. Ronald Mann analyzes Monday’s second argument, 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, for this blog. At Mayer Brown’s Class Defense Blog, Archis Parasharami observes that “the Justices had tough questions for both sides.” [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 Bloomberg, Greg Stohr reports that the court on Monday “rejected an appeal by Maurice ‘Hank’ Greenberg’s Starr International Co., refusing to revive its bid to sue the federal government over the $85 billion bailout of American International Group Inc. a decade ago.” Additional coverage of the cert denial in Starr International Co. v. United States comes from Andrew Chung at Reuters, who reports that “[t]he justices left in place a 2017 ruling by a federal appeals court in Washington that … Starr International Co had no legal right to challenge the bailout because that right belonged to AIG, which chose not to sue.”

In an op-ed for The New York Times, retired Justice John Paul Stevens argues that “[o]verturning [the Supreme Court’s] decision [in District of Columbia v. Heller] via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.” Max Greenwood reports on Stevens’ proposal at The Hill. At Vox, German Lopez remarks that “[t]he problem with Stevens’s proposal is that the barrier to passing new gun control laws isn’t legal but political.” For The Washington Post, Aaron Blake suggests that “[i]n one fell swoop, Stevens has lent credence to the talking point that the left really just wants to get rid of gun ownership and reasserted the need for gun-rights supporters to prevent his ilk from ever being appointed again.”


  • For the ABA Journal, Mark Walsh reports that in South Dakota v. Wayfair, in which the justices will reconsider a ruling that limits the ability of state and local governments to tax out-of-state online retailers, “the high court may be poised to overrule the 26-year-old precedent.” [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 CNN, Joan Biskupic reports that “the US Supreme Court is showing signs of becoming as politically fractured as the rest of Washington,” and that “[i]ndications from the few decisions issued so far and from oral arguments in yet-to-be decided cases suggest the five conservatives on the nine-member bench may be ready to wield their majority power.”
  • For NPR, Nina Totenberg reports that legislation tucked into the new omnibus spending bill “designed to provide incentives for governments to make one-on-one agreements with the U.S., agreements that allow tech companies to honor court-approved search warrants” may well put an end to one of this term’s marquee cases, United States v. Microsoft Corp. [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 Justia’s Verdict blog, Joanna Grossman weighs in on 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 about the availability of publicly funded family-planning services and unlicensed centers to disclose that they have no medical personnel on staff, arguing that “[i]f the FACT Act is invalidated in whole or in part, California could—and should—rewrite the law to cure whatever constitutional defects the Court identifies.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Mar. 28, 2018, 6:48 AM),