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Wednesday round-up

Constitution Daily reports that “[o]ne of the most-significant cases of the Supreme Court’s current term,” United States v. Microsoft Corp., which asks whether the Stored Communications Act allows the government to gain access from email providers to data that is stored overseas, “is on shaky ground after a new law may have settled the controversy before a judicial ruling could be issued.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “[l]awyers for Microsoft Corp. told the U.S. Supreme Court on Tuesday that they concur with the U.S. Justice Department that their dispute over law enforcement access to emails stored outside the country is now moot,” and that “it is now up to the justices to decide whether to dismiss the case before it as moot, an outcome that appears likely.” Additional coverage comes from Lawrence Hurley at Reuters. [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 Bloomberg, Greg Stohr and Dawn McCarty report that the court yesterday “offered a ray of hope for Tribune Co. creditors who are seeking to claw back money from the media company’s former shareholders” when, “[i]n an unusual statement, two justices said without explanation that the Supreme Court might lack the six-justice quorum needed to act in the case.” Additional coverage comes from Andrew Chung at Reuters, who reports that “Justices Anthony Kennedy and Clarence Thomas issued a brief order urging lower courts to reconsider an earlier ruling that barred the creditors from recovering the payments.”

At The Daily Caller, Kevin Daley reports that in a “fervent dissent” to Monday’s ruling in Kisela v. Hughes granting “immunity to a police officer who shot a mentally ill woman outside her home in 2010,” Justice Sonia Sotomayor asserted that the “decision keeps with a ‘disturbing trend’ in which the high court continuously shields serious police misconduct from civil liability.” Kent Scheidegger comments on the case at Crime and Consequences.

Ronald Mann analyzes Monday’s opinion in Encino Motorcars v. Navarro, in which the court held that auto-service advisors are exempt from the Fair Labor Standards Act’s overtime-pay requirement, for this blog. Additional analysis comes from Vin Gurrieri at Law360 (subscription required). At his eponymous blog, Ross Runkel observes that “[p]erhaps the most important takeaway from this decision is the point that the Court rejects the principle that that FLSA exemptions should be construed narrowly.” The editorial board of The Wall Street Journal calls the decision “a victory for the rule of law over legal obfuscation and a deliberate political attempt to expand the Fair Labor Standards Act.”

At his eponymous blog, Lyle Denniston looks at this term’s partisan-gerrymandering cases, suggesting that “there are reasons not to decide either of the two cases that have been heard, whether or not any progress on a final decision has been made up to now.” In an op-ed for The Washington Post, Charles Lane suggests that “[m]aybe the court is having difficulty coming up with a satisfactory answer to [the partisan-gerrymandering] problem because, well, there isn’t one.”


  • At Empirical SCOTUS, Adam Feldman analyzes the length of Supreme Court majority opinions from 1951 until the 2013 term according to several criteria, including author and subject matter.
  • At The National Law Journal (subscription or registration required), Tony Mauro reports that “[w]ithout explanation, the U.S. Supreme Court on Monday abruptly discharged New Orleans lawyer Gregory Grimsalas special master in Texas v. New Mexico and Colorado, an original jurisdiction case currently before the court,” replacing Grimsal with “Senior Judge Michael Melloy of the U.S. Court of Appeals for the Eighth Circuit.”
  • At the ABA Journal, Erwin Chemerinsky looks at the “enormously important” issues in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban.
  • In a series of posts at National Review’s Bench Memos blog, here, here and here, Ed Whelan sets out to demonstrate that a recent book about Justice Antonin Scalia “is badly flawed.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Apr. 4, 2018, 7:29 AM),