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Tuesday round-up

Yesterday the Supreme Court issued additional orders from its conference last Friday, adding one case to its merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Education Week’s School Law Blog, Mark Walsh reports that the court agreed to review Kisor v. Wilkie, which raises “an important question about when courts should defer to a federal agency’s interpretation of its own ambiguous regulations.” Additional coverage comes from Tony Mauro at The National Law Journal (subscription or registration required) and from Ellen Gilmer at E&E News, who reports that the case “centers on veteran benefits but has broader implications for the degree to which judges yield to agency decisionmaking.” Jordan Rubin and Kimberly Robinson report for Bloomberg Law that “what the justices say could suggest that Chevron deference—the rule giving deference to agency interpretations of statutes—could itself be in the cross hairs.”

For The Washington Post, Robert Barnes reports that, over a dissent from Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, the court also “declined … to review lower court decisions that blocked efforts in two states to cut off public funding for Planned Parenthood, refusing for now to get involved in state battles over abortion rights.” For USA Today, Richard Wolf reports that the cert denial “let stand federal appeals court rulings that allowed the reproductive health organization’s patients to contest laws in Louisiana and Kansas that stripped its Medicaid funds.” Jess Bravin reports for The Wall Street Journal that, “[a]part from the abortion issue, conservatives have been skeptical that federal laws give individuals a right to sue over denial of benefits and similar matters unless Congress explicitly provided for such actions.” Additional coverage comes from Nina Totenberg and Domenico Montanaro at NPR, Adam Liptak for The New York Times, Greg Stohr at Bloomberg, Andrew Chung at Reuters, David Savage for the Los Angeles Times, Kevin Daley at The Daily Caller, and Mark Sherman at AP, who reports that “[t]he court’s order reflected a split among its conservative justices and an accusation from Justice Clarence Thomas that his colleagues seemed to be ducking the case for political reasons.” Another look at the cert denial in the Planned Parenthood cases comes in an episode of Tatter (podcast).

The justices also issued one opinion yesterday: In United States v. Stitt, the court held 9-0 that the term “burglary” in the Armed Career Criminal Act, which requires longer sentences for gun offenders who have three prior convictions for certain drug offenses or violent crimes, includes burglary of a structure or vehicle that has been adapted or is customarily used to sleep in overnight, such as an RV or a mobile home. Rory Little analyzes the opinion for this blog. Subscript Law provides a graphic explainer for the decision. Additional coverage comes from Jordan Rubin at Bloomberg Law and Barbara Leonard at Courthouse News Service.


  • At SCOTUS OA, Tonja Jacobi and Matthew Sag follow up on their previous analysis of “the implications of justices cross-referencing other justices at oral argument,” “focus[ing] on the content of those cross-references.”
  • At, Tony Mauro reports that “[a] handful of organizations have recently resorted to GoFundMe campaigns to generate donations for covering the cost of producing amicus briefs filed with the U.S. Supreme Court,” but that “because GoFundMe allows for anonymous contributions, the nascent trend has hit a speed bump”: “the high court’s Rule 37.6, which requires that amicus brief filers ‘shall identify every person other than the amicus curiae, its members or its counsel, who made such a monetary contribution.’”
  • In the most recent episode of First Mondays (podcast), which features “twice as many women … as there were at the Supreme Court podium in the whole December sitting,” Leah Litman guest host Jaime Santos recap last week’s arguments.
  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in Nieves v. Bartlett, which revisits the question of whether probable cause defeats a First Amendment retaliatory-arrest claim, and Nutraceutical Corp. v. Lambert, which involves the timeliness of an appeal from a denial of class-action certification.
  • A recent episode of Bloomberg Law’s Cases and Controversies podcast features a conversation between law professor Steve Vladeck and “Tom Goldstein, the veteran U.S. Supreme Court lawyer and publisher of SCOTUSblog, who is challenging [Acting Attorney General Matthew] Whitaker’s appointment at the high court in an unusual motion.”
  • At The Progressive, Bill Blum observes that during the oral argument last week in Gamble v. United States, which asks whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause that allows a defendant to be prosecuted for the same crime in both federal and state court, “the court appeared as divided as the litigants and the amici, but not along the usual ideological lines.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Dec. 11, 2018, 7:00 AM),