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Wednesday round-up

This morning the Supreme Court ends its last session of the term with a bang when it hears argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Madelaine Horn and Conley Wouters preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer. Lyle Denniston takes a close look at the case at Constitution Daily. For The Washington Post, Robert Barnes reports that the justices will consider “whether President Trump’s travel ban is a necessary step to protect the country from terrorism or an illegal and unconstitutional fulfillment of campaign promises to ban Muslim immigrants.” Additional coverage comes from Nina Totenberg at NPR, Steven Mazie at The Economist’s Espresso blog, Richard Wolf at USA Today, and Bill Mears at Fox News, who reports that “[t]he case will be the first significant legal test so far of the president’s administration and could lead to a precedent-setting ruling on the limits of executive power, especially within the immigration context.” At Vox, Dara Lind breaks down the history of “the travel ban saga.” An episode of the Vox podcast Today, Explained focuses on the case. Commentary comes from the editorial board of the Boston Globe and Ian Millhiser at ThinkProgress.

Yesterday the court issued opinions in three cases. In Oil States Energy Services v. Greene’s Energy Group, the justices held 7-2 that the inter-partes-review process for evaluating the validity of existing patents does not violate the Constitution. Ronald Mann has this blog’s opinion analysis. Subscript has a graphic explainer for the decision. For USA Today, Richard Wolf reports that the court “avoided an upheaval in the way patent disputes can be resolved out of court by siding with regulators over judges.” Additional coverage comes from Greg Stohr and Susan Decker at Bloomberg. [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 second opinion came in another patent case, SAS Institute Inc. v. Iancu, in which the court held 5-4 that when the patent office institutes inter-partes review, it must decide the patentability of all the claims a petitioner has challenged. Subscript’s graphic explainer is here.

Finally, in Jesner v. Arab Bank, a splintered court held 5-4 that foreign corporations cannot be sued for human-rights violations under the Alien Tort Statute. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court, and Subscript has a graphic explainer for the decision. For The Washington Post, Robert Barnes reports that the ruling “split the court along ideological grounds, and was the second time the court had cut back the reach of the 1789 Alien Tort Statute.” Additional coverage comes from Bill Mears at Fox News, Tony Mauro at The National Law Journal (subscription or registration required), Lawrence Hurley at Reuters, Ariane de Vogue and Veronica Stracqualursi at CNN, Jess Bravin for The Wall Street Journal, and Nina Totenberg and Domenico Montanaro at NPR, who report that the majority “said that while the purpose of the statute was ‘to promote harmony’ in international relations, the Arab Bank case and others like it produce contrary results.” At the Cato Institute’s Cato at Liberty blog, Walter Olson maintains that with this decision, “[t]he Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task.” At the Human Rights at Home Blog, Jena Martin argues that “the Court’s opinion comes down to thinly disguised American Exceptionalism.”

Yesterday the court heard oral argument in Abbott v. Perez, two complex redistricting cases from Texas that are consolidated for an hour of argument. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Lawrence Hurley reports for Reuters that the court “appeared divided along ideological lines as it heard a bid by Texas to revive Republican-drawn electoral districts thrown out by a lower court for diluting the clout of black and Hispanic voters.” At CNN, Ariane de Vogue reports that “the liberal justices … suggested that the Supreme Court had stepped in prematurely and therefore had no jurisdiction to hear the challenge.” At the Election Law Blog, Rick Hasen notes that “a dismissal of the case for lack of jurisdiction is a real possibility.” At the Constitutional Law Prof Blog, Ruthann Robson observes that “[m]uch of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination,” and that the parties disagreed about “how long a discriminatory intent taint persists.” At ThinkProgress, Ian Millhiser suggests that Chief Justice John Roberts “and his conservative colleagues seemed … eager to endorse” Texas’ argument “that allegations of racism should be treated with great skepticism.”

Amy Howe analyzes yesterday’s second argument, in Animal Science Products v. Hebei Welcome Pharmaceutical Co., in which the justices considered how much courts should defer to a foreign government’s interpretation of its own law, for this blog; her analysis first appeared at Howe on the Court. At Bloomberg, Greg Stohr reports that “China contends that U.S. courts generally must defer to a foreign country’s interpretation of its own laws,” but the argument “suggested the justices weren’t inclined to give Chinese officials the final say.” Additional coverage of the argument comes from Brent Kendall for The Wall Street Journal.

This blog’s analysis of Monday’s oral argument in Pereira v. Sessions, in which the justices considered how to interpret a provision of the criminal-removal statute, comes from Jennifer Chacon. [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.]  Susan Klein analyzes the argument in another of Monday’s cases, Chavez-Meza v. United States, which asks how fully a judge must explain a sentencing modification, for this blog.


  • In the latest episode of The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in internet-sales-tax case South Dakota v. Wayfair and patent case WesternGeco LLC v. ION Geophysical Corp. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Wayfair.]
  • BBC News reports on the cert denial this week in the case of Bobby Bostic, who was “sentenced to 241 years in prison for a crime he committed when he was 16 years old.”
  • In an op-ed for the Boston Globe, Margery Eagan wonders why Justice Clarence “Thomas remains on the court, unchallenged, unprotested, with all we know now about sexual harassment and other accusations against him.”
  • At The Daily Ranger (subscription required), Daniel Bendtsen reports that “solicitor general Noel Francisco has requested and received an extension on the deadline for an official opinion from the U.S. on whether the U.S. Supreme Court should take up the boundary case considering the Wind River Indian Reservation,” noting that “[t]he actions — and non-actions — the solicitor general already has made in the case have led other attorneys to expect the U.S. will reverse its stance” in the case.
  • At CNN, Joan Biskupic posits that two of yesterday’s opinions may help explain this term’s “record-long turnaround times for cases,” suggesting that “conservatives have exerted control and liberals are not going quietly,” and “that the dueling ideological camps are engaged in especially protracted rounds of back-and-forth, attacking each other’s legal rationales.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Apr. 25, 2018, 7:12 AM),