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Tuesday round-up

Today the eight-justice court will tackle two more cases. The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine. Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review. Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime. This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here. Tucker Higgins reports on the case for CNBC.

Yesterday the justices began October Term 2018 by hearing argument in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. Lisa Heinzerling analyzes the argument for this blog. At Bloomberg, Greg Stohr reports that “[t]he justices appeared split, possibly 4-4, over the federal designation of privately owned land in Louisiana as critical habitat for the dusky gopher frog,” noting that “[t]he owners of the land, including the forest-products company Weyerhaeuser Co., say the designation is improper because the animal doesn’t live on the property and couldn’t do so without modifications to the land.” For The Wall Street Journal, Jess Bravin and Brent Kendall report that “the marble chamber’s atmosphere seemed in many ways a world apart from the caustic partisan battle over the court unfolding in the Senate buildings across the street.” Additional coverage of the argument in Weyerhaeuser comes from Steven Mazie at The Economist’s Democracy in America blog, Bill Mears at Fox News, and Ellen Gilmer at E&E News, who reports that “justices from both ends of the ideological spectrum pushed to understand just where the limits are on the government’s authority.” Commentary comes from the editorial board of The Wall Street Journal and in an op-ed from Jonathan Wood, also at The Wall Street Journal.

Yesterday’s second case was 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. Andrew Chung and Lawrence Hurley report at Reuters that “[m]ost of the justices … seemed inclined to uphold a lower court ruling in favor of the firefighters.” Mark Walsh offers a first-hand account of yesterday’s arguments at this blog.

Amy Howe reports for this blog that yesterday the justices also issued additional orders from last Monday’s “long conference”; they denied review in the vast majority of cases on the 75-page order list and asked for the views of the federal government in eight cases, three of which are consolidated. Rosanna Xia reports for the Los Angeles Times that “[i]n a significant victory for coastal access rights in California, the [justices] rejected a Silicon Valley billionaire’s appeal to keep a beach to himself.” For Capitol Media Services (via the Arizona Capitol Times), Howard Fischer reports that the court also “rebuffed a bid by mining interests to overturn a 20-year ban on extracting uranium from about a million acres around the Grand Canyon National Park.”

Additional coverage of the new term comes from Kevin Daley at The Daily Caller, who reports that “[i]t is the second time in three years that the court opened a new term without a full complement of justices.” At The World and Everything in It (podcast), Mary Reichard looks at opening-day traditions and talks to Elizabeth Slattery of the Heritage Foundation about five notable cases on the docket this term. At Keen News Service, Lisa Keen explains why “this session could be one of the busiest in history for LGBT-related concerns.”

At Forbes, Michael Bobelian writes that Supreme Court nominee Judge Brett Kavanaugh’s emotional testimony last week at a confirmation hearing “looked eerily similar to an unprecedented outburst from a half century ago that helped to bring about a revolution in the Supreme Court confirmation process.” At FiveThirtyEight, Amelia Thomson-DeVeaux and Oliver Roeder consider the potential effect of the battle over Kavanaugh’s confirmation on the public’s view of the Supreme Court, tracking data indicating that “confidence in the court has been declining over the past 30 years.” Commentary on the confirmation comes from Ronald Brownstein at The Atlantic and David French at National Review.


  • At Route Fifty, Bill Lucia reports on Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution, noting that “[i]f the court rules in Knick’s favor, landowners and others who claim that local governments have infringed on their property rights could gain a clearer path to having their cases heard in federal court.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Oct. 2, 2018, 7:11 AM),