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Tuesday round-up

Yesterday the court released orders from the justices’ conference last Friday, adding three merits cases to its docket for next term. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. For The Washington Post, Robert Barnes reports that the justices “next term will consider a Missouri inmate’s contention that the state’s preferred method of executing him could cause him to choke on his own blood and will review a kind of class action settlement in which no payments go to the members of the lawsuit.” At Arbitration Nation, Liz Kramer observes that when the court rules in the third new case, Lamps Plus Inc. v. Varela, we “will have a new decision on whether an interpretation of state law (interpreting ambiguity against a drafter to find class arbitration is authorized) should be preempted by the federal policy favoring arbitration (and particularly, favoring non-class arbitration).” Ross Runkel looks at Lamps Plus at his eponymous blog. Additional coverage of yesterday’s grants comes from Adam Liptak for The New York Times and Jess Bravin for The Wall Street Journal.

At this blog, and originally at Howe on the Court, Amy Howe reports that “Justice Sonia Sotomayor, who injured her left shoulder in a fall at her home earlier this month, will undergo ‘reverse total shoulder replacement surgery’ [this] morning.” For The National Law Journal, Marcia Coyle reports that Sotomayor, “who keeps a very active speaking schedule, will curtail activities for the next few weeks.”

For The New York Times, Adam Liptak reports that “President Trump said on Monday that he would not apologize for campaign statements calling for a ‘Muslim ban,’ appearing to undercut an assertion” at last week’s oral argument in Trump v. Hawaii “from Solicitor General Noel J. Francisco …[,who] said that the president had already disavowed the statements.” Mary Reichard breaks down the argument in the entry-ban case at The World and Everything In It (podcast).


  • For USA Today, Richard Wolf reports that although “[t]here is no vacancy at the Supreme Court, … liberal and conservative activists are ready to do battle over one,” and that “[t]he potential retirement of Justice Anthony Kennedy— the deciding vote on dozens of controversial cases over a 30-year career — has energized both sides for what likely would be the most divisive confirmation battle in decades.”
  • The latest episode of First Mondays (podcast) looks at last week’s oral arguments and the opinion in Jesner v. Arab Bank, in which a splintered court held that foreign corporations cannot be sued under the Alien Tort Statute.
  • At the Election Law Blog, Rick Pildes remarks that during oral argument in Abbott v. Perez, a complex redistricting case from Texas, the questions from “the ‘liberal wing’ of the Court … were overwhelmingly about whether the Supreme Court appeal was premature,” and that “[w]hat’s odd about this … is that this is a battle the liberal wing of the Court seems to have lost already.
  • In an op-ed for The Hill, Oliver Dunford weighs in on Lucia v. Securities and Exchange Commission, which asks whether SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause, arguing that “the case illustrates the dangers of a powerful and unaccountable government in which agencies are allowed to serve as judge, jury and executioner, so to speak, in civil enforcement actions.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Meggan DeWitt contend that “[w]hen it hears Weyerhaeuser v. U.S. Fish & Wildlife Service this fall, the Supreme Court should reverse the lower courts’ determination to allow the federal government to control everyone’s backyards for no particular reason.”
  • At Reason’s Volokh Conspiracy blog, Eugene Volokh demonstrates that “[i]f you are asked for consent to the filing of an amicus brief in your Supreme Court case, there is basically no upside to refusing, and some modest downside,” so “[j]ust say yes.”
  • At Slate, Dahlia Lithwick observes that “RBG,” the new documentary about Justice Ruth Bader Ginsburg, “manages to dig beneath the easy narrative that paints Ginsburg as all badass all the time, to excavate the truth buried beneath: Ginsburg isn’t just an 85-year-old cultural icon, she’s also an 85-year-old cultural icon who spent a lifetime opting for litigating over protesting, for painstaking incremental legal work that took years to bear fruit, and who still feels more comfortable in the world of words and text than in the world of fame and notoriety.”
  • For The New York Times, Adam Liptak considers various assessments of the writing style of Justice Neil Gorsuch, who “arrived at the Supreme Court last year with a reputation as a fine writer,” and “promptly lost it.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (May. 1, 2018, 7:14 AM),