Tuesday round-up

This morning the justices will return from a four-week break to hear oral argument in Return Mail Inc. v. United States Postal Service, in which they will consider whether the federal government can challenge patents under the America Invents Act. Ronald Mann previewed the case for this blog. Garion Liberti and Tayler Woelcke have a preview at Cornell Law School’s Legal Information Institute. Subscript Law offers a graphic explainer for the case. First Mondays (podcast) previews both of this week’s oral arguments.

At The Economist’s Espresso blog, Steven Mazie writes that “[a]nxiety among Democrats should ease this morning when Justice Ruth Bader Ginsburg returns to her place on the bench after cancer treatment.” For The New York Times, Adam Liptak reports that Ginsburg appeared at the court on Friday for the first time since her surgery in December “to participate in a private conference at which the justices considered adding cases to the court’s docket.”

At that conference on Friday, the court agreed to hear Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, with oral argument during the second week in April. Amy Howe has this blog‘s coverage, which first appeared at Howe on the Court. For The Wall Street Journal, Brent Kendall and Janet Adamy report that the case will “add[] another chapter to the court’s interaction with Trump administration initiatives affecting immigrants.” Mark Walsh reports at Education Week’s School Law Blog that “the outcome potentially affect[s] the allocation of billions of dollars in federal education funding.” Additional coverage comes from Nina Totenberg for NPR.

In an op-ed for The Hill, Elliot Mincberg maintains that three of Justice Brett Kavanaugh’s recent votes on the court’s “shadow docket,” “cases that are heard on motions to grant a stay or for other immediate relief without oral argument and usually without written opinions by the justices,” “have more than lived up to President Donald Trump‘s expectations that [Kavanaugh] will be far to the right on the court, including on crucial issues for the Trump administration.” At The Progressive, Bill Blum agrees that “[i]t hasn’t taken Kavanaugh long to reveal his true ideological colors,” focusing on Kavanaugh’s dissent in June Medical Services v. Gee, in which the justices voted 5-4 to temporarily block a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals.

In an op-ed for The National Law Journal, Samuel Spital weighs in on the pending cert petition in Tharpe v. Ford, arguing that “[i]n keeping with its duty to eradicate the pernicious effects of racial discrimination in the judicial system, the U.S. Supreme Court must, once again, intervene in Tharpe’s case and prevent the State of Georgia from executing Tharpe before any court has considered the compelling evidence that Tharpe was sentenced to death, at least in part, because he is black.” Additional commentary on the case comes from David Burge in an op-ed for Newsweek and from Wilton Gregory and others at The Atlantic.

Briefly:

• At National Review, Alexandra McPhee 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, arguing that “[a]ll of America’s increasingly diverse religious communities will lose out if the Constitution is reinterpreted to prohibit any government recognition or accommodation of religion.” [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 Washington Independent Review of Books, Kenneth Jost reviews “The Company They Keep: How Partisan Divisions Came to the Supreme Court.”
• At The World and Everything in It, Mary Reichard discusses the oral arguments in Thacker v. Tennessee Valley Authority, in which the justices considered whether an implied discretionary function exception bars a negligence claim against the TVA, 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, and copyright case Fourth Estate Public Benefit Corp. v. Wall-Street.com.

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