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Wednesday round-up

Yesterday, in Trump v. Hawaii, the Supreme Court voted 5-4 to uphold President Donald Trump’s order restricting entry into the United States by nationals of seven countries, most of which have majority-Muslim populations. Jon Levitan rounded up early coverage of and commentary on the entry-ban case for this blog. For the Los Angeles Times, David Savage reports that “[t]he majority rejected arguments that Trump overstepped his presidential authority and that his targeting of Muslim-majority countries violated the Constitution’s ban on religious discrimination.” Additional coverage comes from Kevin Daley at The Daily Caller and Bob Egelko at the San Francisco Chronicle, Additional commentary and analysis come from Adam Serwer at The Atlantic, Aaron Blake at The Washington Post, Leah Litman at Take Care, Aziz Huq at Take Care, Richard Primus, also at Take Care, Michelle Boorstein at The Washington Post, Peter Schuck in an op-ed for The New York Times, Will Baude at PrawfsBlawg, Dana Milbank in an op-ed for The Washington Post, and Shirin Sinnar at Stanford Law School’s Legal Aggregate blog, who maintains that the majority decision “provides a detailed roadmap for the return of racial origin quotas.”

At CNN, Ariane de Vogue reports that “in the process” of upholding the entry ban, the Supreme Court “finally overturned [Korematsu v. United States,] the infamous 1944 Supreme Court decision blessing internment of Japanese-Americans during World War II.” For The National Law Journal (subscription or registration required), Tony Mauro reports that “the fact the repudiation of Korematsu came in an opinion upholding an immigration policy that some critics likened to the Japanese internment program muted the celebration.” Commentary on the Korematsu development comes from Howard Wasserman at PrawfsBlawg. For The Wall Street Journal, Jess Bravin reports that “Justice Anthony Kennedy has put the notion of human dignity at the center of his jurisprudence and made civility a theme of his public discourse,” and that “[i]t was difficult to mistake his message Tuesday when he penned an implicit critique of President Donald Trump even while voting to uphold the president’s travel ban.”

At PrawfsBlawg, Steven Sachs suggests that “one understated result of [the] travel-ban decision may be to hasten the demise of the universal injunction.” Additional thoughts on this topic come from Howard Wasserman at PrawfsBlawg, here and here.

Yesterday the justices also held 5-4, in National Institute of Family and Life Advocates v. Becerra, that California’s Reproductive FACT Act, which requires licensed crisis pregnancy centers to make disclosures about the availability of free or low-cost abortions and unlicensed centers to disclose their inability to provide medical services, likely violates the First Amendment. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Mark Walsh has a firsthand account of the opinion announcements for this blog. At Good Judgment, Ryan Adler notes that the crowd correctly forecasted the results in both of yesterday’s decisions. At NBC News, Pete Williams reports that the centers argued that “[f]orcing them to post the notices … amounted to government-compelled speech.” Additional coverage of NIFLA comes from Robert Barnes for The Washington Post, Adam Liptak for The New York Times, David Savage for the Los Angeles Times, Lydia Wheeler and Jessie Hellmann at The Hill, Mark Sherman and Jessica Gresko at the Associated Press, Kevin Daley at The Daily Caller, Bill Mears at Fox News, Ariane de Vogue and Claire Foran at CNN, Richard Wolf for USA Today, and Andrew Chung at Reuters, who reports that in dissent, Justice Stephen “Breyer said Tuesday’s ruling could have wider implications, calling into question all manner of government disclosure requirements, such as in securities or consumer-protection regulations.” Ronn Blitzer looks at the decision for Law & Crime. For The Washington Post, Ariana Eunjung Cha reports on how “various stakeholders are reacting to the news” of the ruling in NIFLA.

At The Atlantic, Emma Green suggests that “[l]ooking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups.” Additional commentary comes from Howard Wasserman at PrawfsBlawg, First Amendment Blog, Jennifer Kang at Splinter, Ruthann Robson at the Constitutional Law Prof Blog, Ronn Blitzer at Law & Crime, Elura Nanos, also at Law & Crime, David Gans in an op-ed for USA Today, Ilyse Hogue in an op-ed at CNN, Erica Goldberg at PrawfsBlawg, Elizabeth Slattery and Melanie Israel at The Daily Signal, Michael Dorf at Take Care, and Denise Burke in an op-ed for the Washington Examiner, who argues that “the Supreme Court has again taken a stand in defense of First Amendment freedoms, recognizing that no one should be forced to speak or convey a message that he or she believes to be fundamentally wrong.” Rewire.News’ Boom! Lawyered podcast discusses the decisions in Trump v. Hawaii and NIFLA. At PrawfsBlawg, Howard Wasserman observes that in both cases, the court “remand[ed] for further proceedings, seeming to suggest that this is not the final word on the constitutional validity of the challenged laws and that there may be further arguments to be made during further proceedings on remand,” which “seems like something new.”

At Slate, Mark Joseph Stern remarks that the court’s decision last week in Carpenter v. United States, in which the justices held last week that the government ordinarily needs a warrant to access historical cell-site location information, “might not have been possible had [Justice Sonia] Sotomayor not already laid the groundwork for a dramatic expansion of digital privacy.” In an op-ed for The Hill, Ashley Baker calls the ruling “a major victory for privacy rights that will reign in the increasing tendency of the government to use subpoena power to circumvent the higher standards of a search warrant.” At The Federalist, Margot Cleveland finds “the majority’s approach in Carpenter … emblematic of the approach non-originalist justices have long taken in all areas of constitutional law: If it is a bad law, it is unconstitutional; if it is a societal good, it is a constitutional right.” Additional commentary comes from Jonathan Weinberg at The Conversation.


  • At The National Law Journal (subscription or registration required), Tony Mauro reports that on Monday the justices “turned away a high-profile dispute on the voluntariness of juvenile confessions, a case that is connected to the ‘Making a Murderer’ Netflix series viewed by millions in 2015.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
  • At News, Imani Gandi looks at Justice Sonia Sotomayor’s dissent in Abbott v. Perez, in which the court on Monday largely upheld Texas’ federal congressional and state legislative maps against a racial-gerrymandering challenge.
  • At Slate, Richard Hasen suggests that “[f]or Anthony Kennedy, America’s most powerful jurist, this term has brought unexpected and surprising expressions of powerlessness,” and that “[a]fter Tuesday’s ruling in the Trump travel ban case, it’s starting to feel like the end of his time on the court is near.”
  • In an op-ed for The New York Times, Tim Wu argues that Monday’s decision in Ohio v. American Express Co., in which the court ruled that American Express’ anti-steering rules do not violate federal antitrust law, “delivered a big blow to antitrust law and its traditional mission of helping consumers and fostering economic competition.” [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 petitioners in this case.]
  • At The National Law Review, Laura Lydigsen and Judy He maintain that “[n]otwithstanding the dissent’s predictions of dramatic expansion of U.S. patent protection” in WesternGeco LLC v. ION Geophysical Corp., in which the justices ruled that damages for overseas infringement of a domestic patent include lost profits for overseas contracts the patentholder would have obtained absent the infringement, “general principles of proximate cause may check overreaching damages theories.”
  • At Rewire.News, Jessica Mason Pieklo argues that Monday’s decision to send Arlene’s Flowers v. Washington, the case of a florist who refused on religious grounds to design the flowers for a same-sex wedding, back to the lower courts for reconsideration in light of of Masterpiece Cakeshop v. Colorado Civil Rights Commission shows that “the idea that state governments are somehow treating Christian business owners unfairly when investigating discrimination claims against those business owners has clearly taken hold at the Roberts Court.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jun. 27, 2018, 7:20 AM),