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Tuesday round-up

There are two oral arguments on the Supreme Court’s agenda today. The first is in Biestek v. Berryhill, in which the justices will consider social-security-benefits claimants’ ability to scrutinize the data on which benefits denials are based. David Super had this blog’s preview. Tyler Schmitt and Grace Brosofsky preview the case for Cornell Law School’s Legal Information Institute. This morning’s second case is Helsinn Healthcare v. Teva Pharmaceuticals, which asks whether the “on sale” bar to the patentability of an invention is triggered by a sale in which the purchaser is required to keep the details of the invention confidential. Ronald Mann previewed the case for this blog. Lauren Kloss and Nayanthika Ramakrishnan have a preview for Cornell.

Yesterday the justices issued orders from last week’s conference; Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. At Greenwire (subscription required), Ellen Gilmer reports that the court “invited the solicitor general to weigh in on two closely watched cases involving pollution that moves through groundwater before reaching a surface waterway.” Kevin Daley reports at The Daily Caller that the justices “declined to take up a challenge to President Donald Trump’s border wall …, which asserted that the administration violated the Constitution when it exempted border barrier projects from environmental regulations.” At the Pacific Legal Foundation’s blog, Deborah LaFetra comments on the court’s order in Fleck v. Wetch, a challenge to North Dakota’s mandatory bar dues, that the court of appeals reconsider the case in light of Janus v. AFSCME; she argues that “[t]he First Amendment principles outlined in Janus … demand that no one should be forced into associations as the price of earning a living, including attorneys.”

Mark Walsh has a first-hand view of yesterday’s courtroom proceedings, which featured nods to both the late President George H.W. Bush and recently retired Justice Anthony Kennedy, for this blog. Daniel Hemel has this blog’s analysis of yesterday’s oral argument in Dawson v. Steager, which asks whether federal law or the doctrine of intergovernmental tax immunity prevents West Virginia from differential taxation of retirement benefits of certain former state and federal employees. At AP, Jessica Gresko reports that the justices “seemed inclined … to side with a retired U.S. marshal who argues West Virginia is discriminating against former federal law enforcement officers like him by giving a more generous tax break to former state law enforcement officers.”

Ronald Mann analyzes the oral argument in yesterday’s second case, Lorenzo v. Securities and Exchange Commission, in which the justices considered whether someone who distributed false statements drafted by someone else can be held liable under federal securities laws for participating in a fraudulent scheme, for this blog. At Bloomberg, Greg Stohr and Benjamin Bain report that the court appeared “likely to reinforce the Securities and Exchange Commission’s powers,” and that a “ruling favoring the SEC would mark a turnaround from a trend of Supreme Court rulings against the agency.” The editorial board of The Wall Street Journal calls the case “a textbook example of regulators stretching the law to make an example of an unsympathetic defendant.”


  • For The Washington Post, Robert Barnes explains why, when the Supreme Court “takes up the case of a small-time Alabama felon, Terance Gamble, who complains [in Gamble v. United States] that his convictions by state and federal prosecutors for the same gun possession crime violate constitutional protections against double jeopardy,” “likely to be watching the proceedings closely will be those concerned about a big-time felon, Republican consultant and former Trump campaign chairman Paul Manafort, who was prosecuted by special counsel Robert S. Mueller III for tax fraud.”
  • At PrawfsBlawg, Rory Little weighs in on last week’s oral argument in Timbs v. Indiana, which asks whether the Eighth Amendment’s prohibition on excessive fines applies to the states, noting that “for one Bill of Rights provision in particular – the Fifth Amendment’s right to be charged by a Grand Jury for any ‘capital or otherwise infamous crime’ – the decision to not incorporate is long-standing and quite considered”; “[y]et … it appears to be a “blank spot” in the doctrinal understanding of the Court’s two newest Justices, Gorsuch and Kavanaugh.”
  • At The World and Everything In It, Mary Reichard discusses the oral arguments 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, and Frank v. Gaos, in which the court has been asked to make it harder for companies to settle class-action lawsuits without providing direct compensation to class members, through a process known as cy pres.
  • At E&E News, Ellen Gilmer looks at the implications of the court’s recent decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service, in which the court held that the Endangered Species Act allows the government to designate land as a “critical habitat” only if it is habitat for the listed species, and that the designating agency’s assessment of the costs and benefits of the designation is reviewable in court; she notes that “[t]hough narrow in its holdings, the justices’ unanimous opinion… is expected to have ripple effects in federal courts.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Dec. 4, 2018, 7:09 AM),