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Tuesday round-up

This morning the Supreme Court will hear oral argument in two cases. First up is Bucklew v. Precythe, in which an inmate argues that because he suffers from a rare medical condition, execution by lethal injection will cause him intolerable pain and would violate the Eighth Amendment. Amy Howe previewed the case for this blog, in a post first published at Howe on the Court. Benjamin Rodd and Julia Hollreiser have a preview at Cornell Law School’s Legal Information Institute. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.] This morning’s second case is BNSF Railway Company v. Loos, in which the justices will decide whether a railroad’s payment to an employee for time lost from work can be taxed under the Railroad Retirement Tax Act. Daniel Hemel had this blog’s preview. Cecilia Bruni and Brady Plastaras preview the case for Cornell. Subscript Law offers a graphic explainer.

Amy Howe reports for this blog that last night the federal government asked the Supreme Court “to intervene in a dispute over the Trump administration’s decision to end the program known as ‘Deferred Action for Childhood Arrivals,’ which allows undocumented immigrants who came to the United States as children to apply for protection from deportation.” Additional coverage comes from Greg Stohr at Bloomberg, Richard Wolf at USA Today, and Bill Mears at Fox News, who reports that “[t]he Justice Department wants the justices to use their authority to decide the matter without waiting for lower courts to rule,” but “[i]t is rare the high court grants such a so-called fast-track petition before all the lower courts have weighed in on the merits.”

Yesterday the justices released orders from their conference last Friday. They did not grant any cert petitions, and they declined to vacate a decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding the Obama administration’s “net neutrality” rules, which have since been rolled back under the Trump administration. Amy Howe covers the order list for this blog, in a post that was first published at Howe on the Court. For The Wall Street Journal, Brent Kendall reports that the “new Trump rollback rules are facing their own legal challenges, this time from Democratic state attorneys general and consumer advocates” and that “[i]f those regulations are struck down in court, it’s possible the previous net-neutrality rules would again take effect, at least temporarily.” Additional coverage comes from Lawrence Hurley at Reuters. For Education Week, Mark Walsh reports that the court also “declined to take up the appeal of a Hebrew-language teacher at a Jewish day school who claims she was fired in violation of the Americans with Disabilities Act of 1990,” in a case that “would have given the justices a chance to further define the ‘ministerial exception’ it recognized six years ago, in which church and religious school employers are exempt from anti-discrimination laws for employees who are deemed to be ministers of that faith.”

Yesterday the justices heard oral argument in Sturgeon v. Frost, revisiting the question of whether the National Park Service can regulate activities on navigable waters within the national park system in Alaska. At Reuters, Lawrence Hurley reports that “some of the nine justices questioned the scope of authority that the National Park Service seeks to exercise in Alaska.” In an op-ed for The Hill, Tony Francois argues that the lower court’s “lax version of federal reserved water rights should be reversed, and replaced with the Supreme Court’s strict, limited standard,” in order “to protect water developments and the communities that depend on them from arbitrary federal interference nationwide.”

Monday’s second case was Virginia Uranium, Inc. v. Warren, which asks whether a Virginia moratorium on uranium mining is pre-empted by the Atomic Energy Act. Kevin Daley reports for The Daily Caller that “[a] majority on the Supreme Court seemed to side with Virginia, citing reluctance to probe the intentions of the state legislature, a famously difficult task.” Additional coverage comes from Richard Wolf for USA Today, Greg Stohr at Bloomberg, Adam Liptak for The New York Times, Robert Barnes for The Washington Post, and Andrew Chung at Reuters.


  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in two arbitration cases, Henry Schein, Inc. v. Archer & White Sales, Inc. and Lamps Plus Inc. v. Varela, as well as in Garza v. Idaho, which asks whether a criminal lawyer can refuse to file an appeal from a guilty plea because of a plea waiver.
  • Tony Mauro reports for The National Law Journal (subscription or registration required) that “[t]he proposed Supreme Court rules changes announced on Nov. 1,” particularly the court’s proposal to reduce the word limits for merits briefs, “came as an unpleasant shock to many court advocates.”
  • At the Council of State Governments’ Knowledge Center blog, Lisa Soronen urges the justices “not to overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause,” which allows a defendant to be prosecuted for the same crime in both federal and state court, in Gamble v. United States.
  • A CBS News report features a conversation with “Supreme Court Justice Sonia Sotomayor and fellow Justice Neil Gorsuch … about their work promoting civic education.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Nov. 6, 2018, 6:27 AM),