Friday round-up

Court-watchers continue to parse Wednesday’s oral argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Steven Mazie covers “this showdown over presidential power” for The Economist. At Constitution Daily, Lyle Denniston reports that “[w]hile the religion question did come up Wednesday, it drew notably less discussion than the immigration law dispute.” At CNN, Joan Biskupic observes that “[a]s much as the justices invoked hypotheticals featuring made-up out of control candidates, or as Justice Elena Kagan put it, ‘an out-of-the-box kind of president,’ the justices also had in mind future real presidents and the power of the office.” Analysis of the ban comes from Rebecca Sigmund at Ogletree Deakins. The New York Times podcast The Daily features a discussion of the argument with Supreme Court reporter Adam Liptak. In an op-ed for The Washington Post, Dana Milbank posits that “Wednesday’s Supreme Court argument about the travel ban on certain majority-Muslim nations probably wouldn’t have happened at all if the ban hadn’t been issued by President Trump.” At Balkinization, Marty Lederman explains “why this is not a case in which the courts are being asked, as Justice Kennedy put it, to review a presidential judgment about ‘whether or not there is … a national exigency.’”

At the Associated Press, Mark Sherman and Jessica Gresko note that the Supreme Court “moved very quickly to post a link to an audio recording of arguments over President Donald Trump’s travel ban”; they suggest that the court’s reluctance to provide live audio or grant same-day-audio requests more often may stem from the justices’ belief “that allowing prompt and frequent audio release will be another step down the slippery slope toward cameras in the courtroom.” At Reason’s Volokh Conspiracy blog, Jonathan Adler speculates that “some on the Court [may] fear that releasing same-day audio would encourage advocates (or even justices) to grandstand during oral arguments in the hopes of influencing evening newscasts,” but goes on to remark that [“i]f same-day audio of Trump v. Hawaii can be released without negative incident, I think we can handle same-day audio of cases about the interstices of the Armed Career Criminal Act or ERISA.”

In an op-ed for Bloomberg, Joe Nocera argues that this week’s decision in Oil States Energy Services v. Greene’s Energy Group, in which the justices held that the inter-partes-review process for evaluating the validity of existing patents does not violate the Constitution, “is a reminder of just what a mess the patent system has become.” At Techdirt, Mike Masnick calls the decision “is a big and important win, protecting everyone from bad patents.” [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 petitioner in this case.]

Briefly:

• For the South China Morning Post, Robert Delaney reports that the court’s decision in Animal Science Products v. Hebei Welcome Pharmaceutical Co., which was argued on Tuesday, “could ultimately determine how much latitude US courts will have to question representations by foreign governments about their own laws.”
• At Rewire’s Boom! Lawyered podcast, Jessica Mason Pieklo and Imani Gandy point out that “[w]hen it comes to favorites on the Supreme Court, Justice Ruth Bader Ginsburg gets a lot of love,” but go on to “explain why someone else is deserving of the same—and possibly even more—love: Justice Sonia Sotomayor.”
• In an op-ed for The Washington Post, Richard Pildes explains why partisan gerrymandering, a practice challenged in two pending Supreme Court cases, “today is far more extreme and pervasive than in the past.”
• Richard Hasen discusses his new book about “the influence and legacy of Justice Scalia” on a podcast at Bloomberg.
• In the most recent episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “discuss a SCOTUS haiku, Deputy AG Rod Rosenstein’s SCOTUS debut, and recent opinions” and “[l]aw professor Josh Blackman joins the ladies to talk about the travel ban oral argument and meeting Lin-Manuel Miranda at SCOTUS.”
• A new episode of Counting to 5 (podcast) looks at “three new opinions in argued cases and one newly granted case for next term.”
• At The National Law Journal, Tony Mauro notes that “[i]t is relatively rare for U.S. Supreme Court justices to mention an amicus curiae brief during oral argument,” and “a justice will [almost never] identify the brief by the name of the lawyer who wrote it,” but that’s what happened in Wednesday’s travel-ban argument when Justice Stephen Breyer asked the solicitor general “about ‘families in the Lisa Blatt brief’ who were trying to get to the United States for medical treatment and other reasons but were turned away.”
• In an op-ed for The Washington Post, Jack Phillips, the baker whose refusal to create a wedding cake for a same-sex couple took him to the Supreme Court this term in Masterpiece Cakeshop v. Colorado Civil Rights Commission, wonders whether, “when the dust settles,” “this big, diverse country of ours [will] still have room for me and the millions of others who share my beliefs about marriage.”

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