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Tuesday round-up

This morning the justices will hear oral argument in two criminal cases, both involving federal supervised release. First up is United States v. Haymond, a constitutional challenge to a statutory provision that requires judges to impose additional prison time on sex offenders who violate the terms of their supervised release. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Matt Farnum and Trevor O’Bryan preview the case for Cornell Law School’s Legal Information Institute. This morning’s second case is Mont v. United States, in which the justices will consider whether a period of pretrial imprisonment can toll a term of supervised release. Fiona Doherty previewed the case for this blog; Basem Besada and Luís Lozada have a preview for Cornell.

Yesterday the justices released orders from Friday’s conference, adding one case to their merits docket for next term and issuing a summary reversal in another case. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For Fox News, Bill Mears reports that in Yovino v. Rizo, the justices “ruled that the decisive vote in a California pay dispute case before a lower court doesn’t count — because the vote came from a judge who died before the ruling was issued.” At Education Week’s School Law Blog, Mark Walsh reports that the U.S. Court of Appeals for the 9th Circuit had held, in an opinion written by the late Judge Stephen Reinhardt, “that prior salary may not justify a difference in pay between male and female workers doing the same job.” Brent Kendall reports for The Wall Street Journal that the “decision marked a final encounter with the liberal Judge Reinhardt, whose decisions were targeted regularly by the justices during his 37-year tenure on the Ninth Circuit.” Commentary on Yovino v. Rizo comes from Kent Scheidegger at Crime & Consequences.

Amy Howe analyzes yesterday’s oral argument in Manhattan Community Access Corp. v. Halleck, which asks whether a private operator of a public-access TV channel is a “state actor” who can be sued for violations of the First Amendment, for this blog; her post first appeared at Howe on the Court. At the Constitutional Law Prof Blog, Ruthann Robson suggests that “while the Court could certainly articulate a broad new standard for state action, it seems more likely that the … decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.”

For The New York Times, Adam Liptak writes that The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, which will be argued tomorrow, “will give the court an opportunity to clarify its famously confused jurisprudence on government entanglement with religion.” Robert Barnes reports for The Washington Post that Justice Elena “Kagan could play a pivotal role” in deciding the case. Additional coverage comes from Jessica Gresko at AP. Commentary comes from Jeremy Dys in an op-ed at Fox News, Andrew Seidel at Rewire.News, Thomas Ascik at National Review, and Marty Lederman at Balkinization. At CNBC, Tucker Higgins reports that “[a]bout two dozen high school and college students are being paid to hold places in line” for the argument. [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 SCOTUS OA, Tonja Jacobi and Matthew Sag analyze Justice Ruth Bader Ginsburg’s participation in her first oral argument since her return to the bench from lung surgery in December, noting that “Ginsburg certainly made her presence felt in Return Mail, but she only spoke 123 words.”
  • At Empirical SCOTUS, Adam Feldman examines agreement among the justices on this term’s “shadow docket.”
  • At The World and Everything in It (podcast), Mary Reichard discusses the oral arguments in Franchise Tax Board of California v. Hyatt, in which the court will decide whether to overrule a precedent that allows a state to be sued in the courts of another state without its consent, and 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. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.]

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Feb. 26, 2019, 7:03 AM),