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Wednesday round-up

Court-watchers continue to focus on Monday’s ruling in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting. Scott Bomboy covers the decision for Constitution Daily. For The Washington Post, Amber Phillips offers “a step-by-step rundown of key moments in the debate on gambling in America that got us to this monumental one.” For the Los Angeles Times, David Savage reports that the decision “trumpeted the independence of the states.” At The Economist’s Democracy in America blog, Steven Mazie calls it “a loss for the Trump administration,” which “would like to remove two … policies from the purview of state legislatures: the spreading legalisation of marijuana and ‘sanctuary city’ laws that partially shield undocumented immigrants from the reach of Immigration and Customs Enforcement.” At Medium, Daniel Hemel observes that “[n]ot only did the Supreme Court strike down the federal law at issue, … but it also appears to have invalidated a broad swath of congressional limitations on state tax authority. (Oh, and it also saved sanctuary cities.)” Additional commentary comes from Sam Kamin in an op-ed for The Hill, John Kindt in another Hill op-ed, Noah Feldman in an op-ed at Bloomberg, Mark Joseph Stern at Slate, and Ilya Somin at Reason’s Volokh Conspiracy blog. At Good Judgment, Ryan Adler “puts this as a win for the crowd,” noting that “forecasters held a tight range of a 75% to 80% chance that the Supreme Court would rule that Congress couldn’t prevent New Jersey from repealing its own state prohibitions on sports gambling.”

At Constitution Daily, Scott Bomboy reports that in McCoy v. Louisiana, in which the justices ruled that a defense attorney in a capital case cannot concede a defendant’s guilt to the jury over the defendant’s explicit objection, “[a]mong those submitting briefs supporting McCoy was The Criminal Bar Association Of England & Wales, which agreed with McCoy’s objections on originalist grounds rooted in English law.” In Justice Today curates analyses of the case and reactions to Monday’s decision. At The Atlantic, Garrett Epps argues that “[t]he logical result of [Justice Samuel Alito’s dissent] … would be a system where lawyers decide what is best for clients and ignore their wishes—where, in effect, a defense lawyer acts as judge and jury.”

Also at Constitution Daily, Scott Bomboy looks at Byrd v. United States, in which the court ruled on Monday that a driver can object under the Fourth Amendment to a search of a rental car even when he is not listed on the rental agreement, but “left two other questions open for a lower court to decide, about the alleged fraudulent procurement of a rental car to commit a crime and if probable cause justified the car search.” At the Electronic Frontier Foundation, Andrew Crocker hopes that the decision is “instructive to other courts, particularly those confronted with the argument that terms of service undermine users’ expectation of privacy in third party email.” At Reason’s Volokh Conspiracy blog, Orin Kerr unpacks the decision, agreeing that “[o]ne place Byrd will prove useful is in the context of e-mail privacy.”


  • At Howe on the Court, Amy Howe reports that the parties have reached a settlement in Quality Systems, Inc. v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, a securities-law case that had “seemed like a strong candidate for a grant.”
  • At his eponymous blog, Ross Runkel looks at BNSF Railway Company v. Loos, in which the justices will decide next term whether a railroad’s payment to an employee for time lost from work can be taxed under the Railroad Retirement Tax Act.
  • At the Courthouse News Service, Barbara Leonard reports that “the Supreme Court agreed Monday to resolve whether military widows can hold companies liable under maritime law for products that they did not make, sell or distribute,” in Air and Liquid Systems Corp. v. Devries.
  • Lyle Denniston reports at Constitution Daily that the justices “on Monday denied review, without an explanation, of a plea by gun rights advocates for the Court to recognize a Second Amendment right to sell guns, independent of any buyer’s right of access to such weapons,” “[c]ontinuing [the court’s] pattern of refusing to clarify the gun rights that are protected by the Second Amendment.”
  • At The Economist’s Democracy in America blog, Steven Mazie describes Justice Ruth Bader Ginsburg’s litigation strategy in the sex-discrimination cases she argued before the Supreme Court, chronicled in the new documentary “RBG”: “By appealing to the justices’ sense of fairness and presenting them with sympathetic male and female plaintiffs, Ms Ginsburg built America’s gender equality standards brick by brick” and “laid a foundation for cutting-edge advances in civil liberties and civil rights for LGBT Americans.”
  • At the National Conference of State Legislatures Blog, Lisa Soronen discusses Mount Lemmon Fire District v. Guido, in which the justices will decide next term whether the 20-employee minimum in the Age Discrimination in Employment Act applies to local subdivisions, noting that “small special districts [are] particularly vulnerable to age discrimination lawsuits.”
  • At the Pacific Legal Foundation, Caleb Trotter urges the justices to review “a challenge by hair braiders in Missouri to the state’s requirement that braiders be licensed as a cosmetologist or barber” and “clarify that courts must consider evidence presented in the record that counters the government’s stated rationales in cases challenging economic regulations.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (May. 16, 2018, 7:27 AM),