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Thursday round-up

For this blog, in a post that first appeared at Howe on the Court, Amy Howe analyzes yesterday’s oral argument in Tennessee Wine & Spirits Retailers Association v. Blair, a challenge to Tennessee’s durational residency requirements for liquor licensing. For The Washington Post, Robert Barnes reports that “Supreme Court justices indicated … that they thought Tennessee’s tough residency requirements for those who want to run liquor stores have more to do with protecting in-state economic interests than guarding against the evils of alcohol[, [b]ut they also wondered how far they could go, since the Constitution gives states an especially pivotal role in regulating booze.” Additional coverage comes from Adam Liptak for The New York Times, Richard Wolf for USA Today. Commentary comes in video from ABC News Live’s The Briefing Room.

For The Wall Street Journal, Jess Bravin and Brent Kendall report on yesterday’s reargument in Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution, noting that the case “is part of a drive by conservative activists to pare back the power state and local governments exercise over land use, which they believe can so impair private property as to be the legal equivalent of a ‘taking’ that triggers the constitutional right to ‘just compensation.’” At The WLF Legal Pulse, Richard Samp writes that the argument “made clear that state and local governments are playing Whack-a-Mole with private property rights.”

Ronald Mann has this blog’s analysis of Tuesday’s argument in Home Depot U.S.A. Inc. v. Jackson, which involves the ability of a third-party class-action defendant to remove a counterclaim from state court to federal court. At Mayer Brown’s Class Defense Blog, Archis Parasharami and others write that “based on [the] oral argument, the Court may be closely divided on the questions presented in the case.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.]

This blog’s analysis of Tuesday’s oral argument in Azar v. Allina Health Services, which asks whether the Department of Health and Human Services was required to conduct notice-and-comment rulemaking before altering its Medicare hospital-reimbursement formula, comes from Abbe Gluck and Anne Joseph O’Connell. At Law360 (subscription required), Jeff Overley reports that the justices “appeared skeptical of the U.S. Department of Health and Human Services’ refusal to conduct notice-and-comment rulemaking when outlining a Medicare reimbursement policy that affects billions of dollars in hospital payments.”

Subscript Law provides a graphic explainer for Tuesday’s decision in New Prime Inc. v. Oliveira, in which the court held that an exemption in the Federal Arbitration Act for transportation workers involved in interstate commerce applies to independent contractors.  At his eponymous blog, Ross Runkel remarks that “[s]ome pundits were surprised that the Court would issue a ‘pro-worker,’ ‘anti-arbitration’ decision, failing to understand that the Justices all do their best to be faithful to the words Congress puts into its statutes.” Alexander Chemers and Robert Roginson discuss the opinion at Ogletree Deakins.

Rory Little analyzes Tuesday’s opinion in Stokeling v. United States, in which the justices ruled that a state-law robbery conviction can qualify as a “violent felony” for the purposes of a sentencing enhancement under the Armed Career Criminal Act even when the conviction does not require the use of violent force, for this blog. At Reason’s Volokh Conspiracy blog, Jonathan Adler observes that the first divided opinion of the term “was a 5-4 decision, but not along the lines many would expect.”

At Bloomberg Law, Kimberly Robinson reports that “[a] New York district court ruling barring the Trump administration from including a citizenship question on the 2020 census complicates the U.S. Supreme Court’s next steps in a case that already faces a tight deadline.” Another look at the possible effect of the ruling on the pending Supreme Court case, Department of Commerce v. U.S. District Court for the Southern District of New York, comes from Alison Frankel at Reuters.

In an op-ed at Townhall, Stephanie Taub weighs in on The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, maintaining that “[t]he fact that a nearly 100-year old war memorial dedicated to 49 brave men who died for this country is in jeopardy demonstrates precisely why we need the Court’s help now, more than ever, to return reason and sanity to the Constitution’s religion clauses.” Additional commentary comes from Kelly Shackelford in an op-ed at The Daily Caller. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]


  • At The National Law Journal (subscription or registration required), Tony Mauro interviews Nancy Maveety, the author of “Glass and Gavel: The U.S. Supreme Court and Alcohol,” which Maveety describes as “the story of alcohol in American life and law, a cocktail-by-cocktail history of the eras of the Supreme Court, and its alcohol-related decisions.”
  • At Politico Magazine, Daniel Hemel notes that Justice Ruth Bader Ginsburg’s recent health issues have reopened discussions about the drawbacks of life tenure for Supreme Court justices; he concludes that “[f]ixed terms, age caps, and forced retirement are all strong medicine for the problem of judicial disability,” and that “[i]n light of the flaws inherent in each, the better course of treatment is none at all.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jan. 17, 2019, 6:53 AM),