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Wednesday round-up

This morning the justices will wrap up the October sitting by hearing argument in two cases. The first is Nielsen v. Preap, which involves the immigration law’s mandatory detention provision. Jennifer Chacon previewed the case for this blog. Ushin Hong and Russell Mendelson have a preview for Cornell Law School’s Legal Information Institute. Today’s second argument is in Air and Liquid Systems Corp. v. Devries, which asks whether companies can be held liable under maritime law for injuries caused by asbestos that was added to the companies’ products by third parties after the point of sale. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.] This blog’s preview came from Ronald Mann. Cecilia Bruni and Brady Plastaras preview the case for Cornell, and Subscript Law has a graphic explainer.

Yesterday marked Justice Brett Kavanaugh’s debut on the Supreme Court bench. Mark Walsh offers a first-hand view for this blog. At Fox News, Bill Mears reports that “Kavanaugh received a warm welcome from his new colleagues Tuesday as he made a low-key public debut at the Supreme Court, in a collegial scene that stood in sharp contrast to the chaos of his confirmation process.” Additional coverage of Kavanaugh’s first day as a justice comes from Jessica Gresko and Mark Sherman for the Associated Press, Kevin Daley at The Daily Caller, Andrew Chung and Lawrence Hurley at Reuters, Greg Stohr and Sahil Kapur at Bloomberg, Robert Barnes and others for The Washington Post, Richard Wolf for USA Today, and Brent Kendall and Jess Bravin for The Wall Street Journal. In Stokeling v. United States, the court considered whether a state-law robbery offense meets the Armed Career Criminal Act’s definition of a violent felony. The next argument was in two consolidated cases, United States v. Stitt and United States v. Sims, both of which involve the “generic” definition of burglary for the purposes of an ACCA enhancement. Rory Little analyzes both arguments for this blog.

For this blog, as first posted at Howe on the Court, Amy Howe reports that in the order list from last Friday’s conference, the justices “did not add any new cases to their docket, and they did not act at all on several high-profile petitions for review – potentially pushing those off until a future conference, at which all nine justices can vote.” At E&E News (subscription required), Ellen Gilmer reports that “[e]nvironmentalists and business interests had hoped the justices would accept a case involving a 2015 EPA rule aimed at phasing out the use of powerful greenhouse gases known as hydrofluorocarbons,” but “[t]he justices denied their petition [yesterday], declining to review a lower-court decision that struck down the program.”

For The Wall Street Journal, Jess Bravin reports that over time, “Kavanaugh is expected to provide a consistent vote to implement the conservative movement’s legal agenda in a range of areas where the Supreme Court has failed to produce ideologically consistent results, despite Republican presidents having appointed 14 of 18 justices since 1969.” Ellen Gilmer reports for E&E News that “[c]onservative lawyers are mapping out the next environmental battles they want to wage before the newly constituted Supreme Court,” which may herald “a potential uptick in cases involving property rights, agency power and cornerstone environmental laws including the Endangered Species Act and the Clean Water Act.” At the Pacific Legal Foundation Blog, Mark Miller considers the potential impact of Kavanaugh’s appointment “on the Court’s practice and jurisprudence.” For the Jewish Policy Center’s InFOCUS magazine, Ilya Shapiro observes that “the Court’s ideological dynamic that we’ve all gotten used to, with four liberals, four conservatives, and a ‘swing,’ is now done.”


  • At SCOTUS OA, Tonja Jacobi and Matthew Sag “predict a unique alliance” based on last week’s oral argument in Gundy v. United States, in which the justices will decide whether a provision of the federal sex-offender act violates the nondelegation doctrine: “a dissenting coalition of the liberal Justice Sotomayor and the conservative Justice Gorsuch,” producing “a 5:3 ruling in favor of the government, with Sotomayor and Gorsuch joined by the silent Justice Thomas, based on his previous positions.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Oct. 10, 2018, 7:04 AM),