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Thursday round-up

Amy Howe covers yesterday’s oral argument in The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, for this blog, in a post that first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that the court “seemed ready … to allow a 40-foot cross honoring soldiers who died in World War I to remain in place on public land in Maryland.” For The Wall Street Journal, Jess Bravin reports that the “justices showed little inclination to significantly expand government’s power to promote sectarian beliefs, despite the recent arrival of two Trump appointees championed by religious conservatives.” Robert Barnes reports for The Washington Post that “[t]wo of the court’s four liberals suggested the unique history of the Peace Cross in the Washington suburb of Bladensburg, Md., may provide a way to accommodate its position on public land in a highway median.”

Additional coverage of the argument comes from Nina Totenberg at NPR, Bill Mears at Fox News, Richard Wolf for USA Today, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Ariane de Vogue at CNN, Autumn Callan at Jurist, and Mark Walsh at Education Week’s School Law Blog. At The Daily Caller, Kevin Daley highlights the stories of three of the soldiers commemorated on the monument. Commentary comes from Elizabeth Slattery at The Daily Signal, Ruthann Robson at the Constitutional Law Prof Blog, and Leslie Griffin at Justia’s Verdict blog. [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.]

Yesterday the Supreme Court released three opinions. In Madison v. Alabama, the justices ruled 5-3 that the Eighth Amendment may allow execution of someone who cannot remember his crime, but it may prohibit execution of someone who suffers from dementia and cannot understand why the state wants to execute him, and they sent the case back for the lower court to reconsider under that standard. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. For The Wall Street Journal, Brent Kendall and Jess Bravin report that “[t]he case was one of two victories for criminal defendants Wednesday, both of which saw Chief Justice John Roberts join the court’s liberal wing to reinforce constitutional limits on the state.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “[t]he Madison ruling is just the kind of decision Roberts can embrace, because of his apparent displeasure that lower courts are too often circumventing or ignoring the high court’s decisions and doctrine.” Additional coverage comes from Ariane de Vogue at CNN, Richard Wolf at USA Today, Andrew Chung at Reuters, and Austin Koltonowski at Jurist. At The Atlantic, Garrett Epps calls the opinion “a taste of the death penalty jurisprudence of the future,” because “‘America’s death row population is aging significantly.’” Commentary comes from Kent Scheidegger at Crime & Consequences, who asserts that the decision “confirm[s] that the state was right on the question that everyone thought the case was about — whether inability to remember the crime alone exempted a murderer from execution. No, it does not.”

In Garza v. Idaho, the court held 6-3 that a defendant who has waived his right to appeal as part of a guilty plea is presumptively prejudiced by his lawyer’s refusal to file an appeal. At Law360 (subscription required), Jody Goday reports that “Garza had argued his counsel provided ineffective assistance by not filing the appeal.” Charles Gallmeyer covers the opinion for Jurist.

And in Jam v. International Finance Corporation, the court ruled 7-1 that international organizations have the same immunity from lawsuits that foreign countries currently have, which would allow them to be sued in U.S. courts for their commercial activities. Amy Howe has this blog’s opinion analysis. Lawrence Hurley reports at Reuters that the ruling in Jam “revived a lawsuit by villagers in India seeking to hold a Washington-based international financial institution responsible for environmental damage they blame on a power plant it financed.” At Greenwire (subscription required), Ellen Gilmer reports that “[t]he case could have broader impacts in international environmental law, opening the door to more litigation over the financing of fossil fuel projects, among other things.” Additional coverage comes from Greg Stohr at Bloomberg and Xi Lucy Shi at Jurist.


  • This blog’s analysis of Tuesday’s oral argument in Mont v. United States, in which the justices considered whether a period of pretrial imprisonment can toll a term of federal supervised release, comes from Fiona Doherty.
  • At, Tony Mauro reports that “U.S. Solicitor General Noel Francisco, choosing a middle path in a major dispute over the power of regulators, told the U.S. Supreme Court on Monday that two precedents directing courts to defer to an agency’s interpretation of its own ambiguous regulations should be significantly narrowed but not reversed” in Kisor v. Wilkie.
  • In an op-ed for The New York Times, Linda Greenhouse writes that a “decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally” builds on the “jurisprudence of sex equality” established throughout Justice Ruth Bader Ginsburg’s career, showing that “it’s the law that matters, the law that Ruth Ginsburg made and is making still.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Feb. 28, 2019, 7:17 AM),