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Tuesday round-up

For the Associated Press, Lisa Mascaro reports that “[l]ate last week, Democrats lost ground in their fight to unearth some 1 million documents related to [Supreme Court nominee Brett] Kavanaugh’s time as staff secretary at the Bush White House, a three-year stint on his resume that Republicans say is irrelevant to his qualifications for the court.” Additional coverage comes from Jimmy Hoover and Michael Macagnone at Law360 (subscription required), who report that the Democrats’ chances of accessing the documents “plummeted after the National Archives confirmed that such requests could only come from Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa.”

At First Mondays (podcast), Dan Epps and Ian Samuel “round up the latest Kavanaugh news, including speculation on the Bush documents and a debate over whether Democrats should support his confirmation when they disapprove on the merits.” In an op-ed for The Hill, Ken Blackwell maintains that Kavanaugh’s nomination is “great news for Americans concerned about protecting religious freedom and making sure administrative agencies stay within the realm of their legal authority.” In an op-ed for the Los Angeles Times, Joshua Gelzer cautions those worried about Kavanaugh’s views on the “administrative state” against confusing “the demise of a doctrine of statutory interpretation with the demise of the regulatory and administrative agencies themselves.”


  • For The New York Times, Adam Liptak reports that in a talk last week at Duke Law School, Justice Ruth Bader Ginsburg said “[t]he term that ended in June had been … ‘much more divisive than is usual’” and that “the court had fallen woefully short in its quest for consensus.”
  • At The National Law Journal (subscription or registration required), Tony Mauro chronicles some of the spelling, grammatical and other corrections the Supreme Court has posted this term on the website where its slip opinions are published, “examples of the court’s small step toward transparency when it comes to revising opinions after they are handed down—a practice that until 2015 was shrouded in secrecy.”
  • At Crime and Consequences, Kent Scheidegger notes that the court yesterday sent a case back to the Court of Appeals for the Armed Forces to determine whether a military statute of limitations barred a 2014 prosecution for a rape that occurred in 2005.
  • For The Progressive, Bill Blum takes note of the ways in which the Roberts court “has been hard on labor unions and the rights of working people,” culminating in last term’s decisions in Epic Systems v. Lewis, in which the court held that employers can require employees to resolve wage and hour claims through individual arbitration rather than class or collective actions, and Janus v. American Federation of State, County, and Municipal Employees, Council 31, which struck down a state law allowing public-sector unions to charge nonmembers for collective-bargaining activities.
  • At Howe on the Court, Amy Howe looks at two pending cert petitions challenging Colorado’s solitary-confinement practices under the Eighth Amendment’s ban on cruel and unusual punishment.
  • At the Washington Legal Foundation’s Legal Pulse blog, Stephen Bainbridge looks at Lorenzo v. SEC, a securities-fraud case that asks whether “merely disseminating fraudulent statements (without making them) gives rise to liability under Rule 10b-5(a) or 10b-5(c).”
  • At Ars Technica, Jon Brodkin writes that “[t]he Trump administration has asked the US Supreme Court to vacate the 2016 court ruling that upheld the Obama-era net neutrality rules in a strategy that could help uphold the Federal Communications Commission’s recent repeal of those rules.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Aug. 7, 2018, 6:54 AM),