Thursday round-up

EDITH ROBERTS NOV 29, 2018 7:08 AM

For this blog, in a post that first appeared at Howe on the Court, Amy Howe covers yesterday’s oral argument in Timbs v. Indiana, in which the justices considered whether the Eighth Amendment’s prohibition on excessive fines applies to the states. Robert Barnes reports for The Washington Post that the question “seemed to strike the Supreme Court … as something of a constitutional no-brainer,” and that the justices “seemed more than ready to rule for Tyson Timbs of Marion, Ind., who had his $42,000 Land Rover seized after he was arrested for selling a couple hundred dollars worth of heroin.” Additional coverage comes from Nina Totenberg at NPR, Adam Liptak for The New York Times, Mark Sherman at AP, Richard Wolf for USA Today, Greg Stohr at Bloomberg, Kevin Daley at The Daily Caller, and Jess Bravin for The Wall Street Journal, who reports that “several justices were concerned that there was no obvious formula for determining when a fine was excessive.” At the Constitutional Law Prof Blog, Ruthann Robson observes that “[t]he relationship between the incorporation of the right and the scope of the right permeated the argument.”

At E&E News, Ellen Gilmer reports that after Tuesday’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, “[t]he 5th U.S. Circuit Court of Appeals will now weigh loaded questions over the meaning of ‘habitat’ and the Fish and Wildlife Service analysis underpinning the agency’s approach to protecting land for the [dusky gopher] frog.” At the Pacific Legal Foundation blog, Mark Miller calls the decision “more than just a win for one client; it’s a big win for private property rights and government accountability.”

At The Economist’s Democracy in America blog, Steven Mazie reports that during Tuesday’s oral argument in Carpenter v. Murphy, a capital case in which the justices will decide whether Congress has disestablished the boundaries of an Indian reservation in Oklahoma, affecting the state’s ability to prosecute crimes in the affected area, “a majority of the justices fretted about the practical implications of recognising nearly half of Oklahoma as Creek territory.” In an op-ed for The Washington Post, Rebecca Nagle argues that a ruling for the state “would set unique and dangerous precedent that merely treating Native Nations as though their land does not belong to them is enough to take it away.”

Briefly:

• Howard Wasserman has this blog’s analysis of Tuesday’s argument in Nutraceutical Corp. v. Lambert, which involves the timeliness of an appeal from a denial of class-action certification.
• At The National Law Review, David Fischer writes that Cochise Consultancy Inc. v. United States, ex rel. Hunt, about whether the “discovery” exception to False Claims Act statute of limitations applies to private parties in cases in which the government has not intervened, “has the potential to bring some clarity to the FCA’s statute of limitations.”
• In an op-ed at TC Palm, Mark Miller weighs in on American Legion v. American Humanist Association, an establishment clause challenge to the placement on public land of a World War I memorial shaped like a cross, urging the justices to “reject this misguided effort to use the separation of church and state to destroy simple government-maintained memorials reflecting the faiths of the fallen.”
• At The WLF Legal Pulse, Cory Andrews discusses Monday’s oral argument in Apple v. Pepper, in which the justices will consider whether iPhone-app purchasers can bring an antitrust suit against Apple, noting that “so far, this is strictly a case about who is entitled to sue,” and that “[e]ven if the Court affirms the Ninth Circuit, whether the plaintiffs will ultimately be able to prove that Apple is abusing a monopoly is another question entirely.”
• At Empirical SCOTUS, Adam Feldman examines data related to the Supreme Court’s overruling of its own precedents.
• In an op-ed for The Washington Post, Kenneth Starr urges the Supreme Court “to correct the Texas court’s fundamental error” in a case in which the state court “for the second time relied on lay stereotypes and non-clinical criteria” to rule that inmate Bobby Moore “is not intellectually disabled and set him on course for execution,” “despite the Supreme Court’s explicit instructions” in 2017 in Moore v. Texas.

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