Tuesday round-up

EDITH ROBERTS NOV 27, 2018 7:01 AM

There are two oral arguments on the Supreme Court’s agenda today. The first is in Nutraceutical Corp. v. Lambert, which involves the timeliness of an appeal from a denial of class-action certification. Howard Wasserman previewed the case for this blog. Amanda Wong and Jared Ham have a preview at Cornell Law School’s Legal Information Institute. Next is 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 major crimes in the affected area. Ronald Mann had this blog’s preview. Sarah Evans and Kathryn Adamson preview the case for Cornell.

Amy Howe has this blog’s analysis of yesterday’s oral argument in Apple v. Pepper, in which the justices considered whether iPhone-app purchasers can bring an antitrust suit against Apple for monopolizing the market for the apps and making consumers overpay; her post was first published at Howe on the Court. At Bloomberg, Greg Stohr and Naomi Nix report that “justices from across the ideological spectrum suggested skepticism about Apple’s contention that the consumers pressing the suit can’t collect damages.” Additional coverage of the argument comes from Kevin Daley at The Daily Caller, Andrew Chung at Reuters, Brent Kendall for The Wall Street Journal, and Robert Barnes for The Washington Post.

Yesterday’s second case was Nieves v. Bartlett, which revisits the question of whether probable cause defeats a First Amendment retaliatory-arrest claim. For The Wall Street Journal, Jess Bravin reports that the justices “searched … for ways to protect police from nuisance suits by people they arrest, without giving officers carte blanche to make retaliatory arrests of reporters, demonstrators and others for exercising free-speech rights.” Additional coverage of the argument comes from Robert Barnes for The Washington Post and Adam Liptak for The New York Times. At The Atlantic, Garrett Epps writes that the case “may finally resolve the question of whether a citizen can ignore or even talk back to police officers without fear of consequences.”

In an interview with Adam Liptak for The New York Times, 98-year-old retired Supreme Court Justice John Paul Stevens talks about his upcoming memoir and “single[s] out three decisions as grave errors, noting that he had dissented in all of them.” One of these decisions was landmark Second Amendment case District of Columbia v. Heller; Ian Millhiser writes at ThinkProgress that Stevens’ revelation that retired Justice Anthony Kennedy, who was in the majority in Heller, was persuaded to ask for some important caveats limiting the reach of the court’s opinion, suggests that “there are probably no longer five votes on the Supreme Court who support this language in Heller.”

At The Baltimore Sun, Michael Dresser reports that “Gov. Larry Hogan on Monday created an ‘emergency’ commission to redraw the borders of Maryland’s 6th congressional district, moving ahead on a new map despite state Attorney General Brian Frosh’s appeal [to the Supreme Court] of a federal ruling that ordered the redraft.” Additional coverage comes from Erin Cox for The Washington Post.

For the ABA Journal, Mark Walsh previews Timbs v. Indiana, in which the court will decide whether the Eighth Amendment’s excessive fines clause applies to the states, noting that “Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.” Another look at Timbs comes from Ruthann Robson at the Constitutional Law Prof Blog. The latest episode of First Mondays (podcast) also focuses Timbs, which will be argued tomorrow.

Briefly:

• At SCOTUS OA, Tonja Jacobi and Matthew Sag “begin to explore the phenomena of justice-to-justice name checking and conclude that, although there is significant variation between justices and over time, the practice is highly correlated with, and predictive of, agreement among the justices.”
• At Mother Jones, Stephanie Mencimer writes that “[b]y refusing to gracefully transition off the court when Obama could have named her successor, [Justice Ruth Bader Ginsburg] has raised the very real risk of her seat being filled by someone who will spend a generation trying to undo all she worked for.”
• At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in Virginia Uranium, Inc. v. Warren, which asks whether a Virginia moratorium on uranium mining is pre-empted by the Atomic Energy Act, and Sturgeon v, Frost, in which the court will decide if the National Park Service can regulate activities on navigable waters within the national park system in Alaska.
• At the Yale Journal on Regulation’s Notice & Comment blog, Bernard Bell kicks off a series of posts on PDR Network, LLC v. Carlton & Harris Chiropractic Inc., which asks whether the Hobbs Act, a jurisdictional-channeling statute, requires courts to accept the Federal Communications Commission’s interpretation of a statute allowing recipients of “junk faxes” to sue the senders for damages; in this post, Bell considers “whether the Hobbs Act applies at all.”
• For The New York Times, Carl Hulse considers the effect of the nomination of Justice Brett Kavanaugh on the midterm elections, concluding that “the most contentious Supreme Court confirmation drama in decades resulted in a split midterm decision that suggests that Democrats might have gained ground in their fledgling efforts to make the court as mobilizing an issue to their voters as it has long been to Republicans.”
• At Deadspin, Dave McKenna notes that “[c]oaching youth basketball was a big part of [Kavanaugh’s] confirmation hearings this fall,” and he reports that “over the weekend, Kavanaugh was … back at it during the 2018 Dick Brown Memorial Turkey Shootout, an annual basketball tournament for CYO squads held in Hyattsville, Md.”
• At the Brennan Center for Justice, Andrew Cohen weighs in on Chief Justice John “Roberts’s defense of the federal judiciary” against criticism by President Donald Trump.
• In an op-ed at The Daily Caller, Jay Hobbs urges the justices to review R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, an employment-discrimination case involving the firing of a transgender employee, and “to affirm the clear definition of ‘sex’” in Title VII of the Civil Rights Act of 1964.

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