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Tuesday round-up

This morning the justices will hear two hours of oral argument. First on the agenda is Abbott v. Perez, two complex redistricting cases from Texas that are consolidated for an hour of argument. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Robin Grieff and Hillary Rich preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer for the case. At ThinkProgress, Ian Millhiser argues that “[t]he Court’s failure to understand that redistricting is a special area of the law requiring extra scrutiny is the original sin of its gerrymandering jurisprudence.”

This morning’s other case is Animal Science Products v. Hebei Welcome Pharmaceutical Co., in which the justices will consider how much courts should defer to a foreign government’s interpretation of its own law. This blog’s preview came from Amy Howe and appeared first at Howe on the Court. Kristina Hurley and Michael Iadevaia preview the case for Cornell. Subscript’s graphic explainer is here. Constitution Daily takes a quick look at today’s two cases.

Yesterday the court issued orders from its conference last Friday, granting two consolidated cases involving the Armed Career Criminal Act, for an hour of oral argument, and asking for the views of the solicitor general in a patent case. Amy Howe covers the order list for this blog; her coverage was originally published at Howe on the Court.

Yesterday the justices also heard oral argument in Lucia v. Securities and Exchange Commission, which asks whether SEC administrative law judges are “officers of the United States” within the meaning of the Constitution’s appointments clause. Ronald Mann has this blog’s argument analysis. For The Wall Street Journal, Jess Bravin and Dave Michaels report that the “justices appeared wary … of claims that the nonpolitical process for appointing administrative-law judges to hear securities-enforcement cases is unconstitutional, with several justices concerned that striking down the system could erode the political independence of the federal civil service.” Additional coverage comes from Adam Liptak for The New York Times, Robert Barnes for The Washington Post, Andrew Chung at Reuters, and David Savage for the Los Angeles Times, who reports that “[m]ost of the justices said they were not interested in ruling broadly.” At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro observes that “[a]fter argument, Lucia remains hard to predict,” and that all the justices “were troubled by the potential ramifications of ruling one way or another, because so many federal decisions could potentially be affected.” At The Atlantic, Peter Shane suggests that the court’s decision “could offer a clue about how the justices would react to President Trump firing Special Counsel Robert Mueller.”

Yesterday’s second argument was in Pereira v. Sessions, in which the justices considered how to interpret a provision of the criminal-removal statute. At WBUR, Shannon Dooling reports that “for thousands of immigrants, [this case] could mean the difference between staying in the country and being deported.” [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. The author of this post is not affiliated with the firm.]

After lunch, the justices reconvened for a rare afternoon argument, in Chavez-Meza v. United States, which asks how fully a judge must explain a sentencing modification. For this blog, Mark Walsh has a first-hand account of the hearing, focusing on the advocacy of Deputy Attorney General Rod Rosenstein, who argued on behalf of the federal government. At CNN, Ariane de Vogue reports that “Rosenstein was completely at ease as he jumped into arguments and answered questions … during the 60-minute argument.” Additional coverage of the argument comes from Mark Sherman at the Associated Press, Jess Bravin for The Wall Street Journal, and Greg Stohr at Bloomberg.

Looking ahead to tomorrow’s argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban, Mark Sherman reports for the Associated Press that “[t]he high-stakes arguments at the high court on Wednesday could offer some indication about how a court that runs on respect for traditions and precedent will deal with a president who regularly breaks with convention.” At NPR, Nina Totenberg reports that the case “has produced an astounding and bipartisan coalition of intelligence and national-security heavyweights, who are urging the court to strike down the ban”; she interviews one of them: former CIA director Michael Hayden. Education Week’s School Law Blog, Mark Walsh looks at amicus briefs filed in support of the challengers by “[t]eachers’ unions, colleges and universities, and many higher education groups.” Additional coverage comes from Jess Bravin and Brent Kendall for The Wall Street Journal.

An American Constitution Society podcast discusses the issues in the entry-ban case. At The Economist’s Democracy in America blog, Steven Mazie finds it “telling that the briefs supporting Mr Trump’s immigration decisions expend more energy imploring the justices to look away rather than to carefully examine the justifications and motives behind the travel restrictions.” At Take Care, Ingrid Brunk Wuerth and Ganesh Sitaraman argue that “[w]hile categorizing ‘national security’ issues as warranting exceptional deference might be rhetorically powerful and instinctively comforting, it is not logically defensible – and it poses dangerous consequences for our constitutional system.” An updated guide to all Take Care’s commentary on the entry ban is here. In an op-ed for The Hill, Mark Miller urges court-watchers to “focus on the deeper legal questions involved, rather than obsessing over the superficial politics and personalities.” In an op-ed for The New York Times, Thomas Kean and others maintain that “the ban threatens a cornerstone of our system of government: the constitutionally mandated separation of powers.” Additional commentary on the case comes from Howard Wasserman at PrawfsBlawg and the editorial board of The New York Times.


  • For the ABA Journal, Mark Walsh reports that “[w]ith about two months left in the U.S. Supreme Court’s current term, speculation about a retirement from the bench is shifting into overdrive—if it weren’t there already,” noting that “[t]he retirement decisions or nondecisions by the justices have been studied by a surprising number of political scientists and other researchers.”
  • At The Washington Legal Foundation’s Legal Pulse blog, Gene Schaerr remarks that the court “may be about to resolve two issues of enormous importance to anyone involved, directly or indirectly, in the sale of securities,” as the justices consider a pending cert petition in a case that could “substantially reduce the uncertainty in and, indeed, the over-criminalization, of the law governing all who are involved in selling securities.”
  • At Truthdig, Bill Blum maintains that Justice Neil Gorsuch’s concurrence in last week in Sessions v. Dimaya, joining a judgment that found the catchall section of the immigration law’s criminal-removal provision to be unconstitutionally vague, “was entirely consistent with the reputation he earned during his career on the 10th Circuit as a Scalia-like ‘originalist’ in the interpretation of constitutional law.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Apr. 24, 2018, 7:27 AM),