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Monday round-up

This morning the Supreme Court kicks off October Term 2018 by hearing oral argument in two cases. The first is Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a challenge to the federal government’s critical-habitat designation for the dusky gopher frog. Lisa Heinzerling previewed the case for this blog. Garion Liberti and Tayler Woelcke have a preview for Cornell Law School’s Legal Information Institute. Subscript Law provides a graphic explainer for the case. Another look at Weyerhaeuser comes from Mark Miller at the Federalist Society Review. At E&E News, Ellen Gilmer explains that the case is “a rare instance of the Supreme Court wading into Endangered Species Act issues.” Today’s second argument is in Mount Lemmon Fire District v. Guido, in which the justices will decide whether the 20-employee minimum in the Age Discrimination in Employment Act applies to state and local governments. This blog’s preview comes from Charlotte Garden; Tyler Schmitt and Isaac Idicula have a preview for Cornell. Dan Epps and Ian Samuel look ahead at this week’s cases in the latest episode of First Mondays (podcast).

For The Wall Street Journal, Brent Kendall and Jess Bravin report that “[a]n eight-member Supreme Court, divided by ideology and clouded by uncertainty, returns Monday for a docket of workmanlike disputes while senators battle over nominee Brett Kavanaugh’s confirmation in the face of sexual-assault allegations.” At Fox News, Bill Mears reports that “[a]mong the disputes scheduled to be argued this fall are those concerning the death penalty, smartphone apps and a closely watched-property rights case,” and that “the justices in coming weeks are poised to add a range of other contentious issues to their caseload.” At The Economist’s Espresso blog, Steven Mazie notes that “this year’s 43 pending cases are less ideologically fraught than last term’s.” For The New York Times, Adam Liptak suggests that the “lower-profile but still consequential legal questions” on the docket may allow the justices “to find ways to bridge the usual ideological divides,” a task that has “grown only more urgent as the bitterly partisan confirmation process for … Kavanaugh … has been delayed so the F.B.I. can investigate sexual misconduct allegations.”

At Constitution Daily, Lyle Denniston considers the possible effects on the Supreme Court of the ongoing battle over Kavanaugh’s confirmation. For The Washington Post, Robert Barnes and Carol Leonig report that the controversy has “placed the court in an unwelcome spotlight.” Commentary and analysis related to the confirmation come from Joan Biskupic at CNN, Steven Mazie at The Economist’s Democracy in America blog, Byron York in an op-ed at the Washington Examiner, the editorial board of The Wall Street Journal, Kenneth Jost at Jost on Justice, and Jay Cost at National Review.

At CPR Blog, John Echeverria weighs in on Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider Williamson County Regional Planning Commission v. Hamilton Bank, a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution; he argues that “the Court should reject the invitation in Knick to overturn its precedent” because “there is no constitutional right to forum shop, and the distinctive character and scope of the Takings Clause dictates that takings claims be handled differently than other constitutional claims.” At the Georgetown Journal of Law and Public Policy, Joel Nolette takes the opposite view, urging the court to “remedy the ‘anomalies’ created by Williamson County.”


  • For The New Yorker, Jill Lepore charts Justice Ruth Bader Ginsburg’s path to the Supreme Court, noting that Ginsburg “was and remains a scholar, an advocate, and a judge of formidable sophistication, complexity, and, not least, contradiction and limitation,” and maintaining that “[i]t is no kindness to flatten her into a paper doll and sell her as partisan merch.”
  • Amy Howe reviews last week’s Supreme Court news, including the new cert grants from the long conference and Thursday’s confirmation hearing for Kavanaugh, in a podcast at Howe on the Court.

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Oct. 1, 2018, 7:26 AM),