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Wednesday round-up

This morning, in Mission Product Holdings Inc. v. Tempnology LLC, the justices will consider whether a trademark licensee retains any rights under a licensing agreement when the licensor goes bankrupt. Ronald Mann previewed the case for this blog. Cecelia Bruni and Brady Plastaras have a preview at Cornell Law School’s Legal Information Institute.

Yesterday the court released additional orders from Friday’s conference, adding an important Clean Water Act case to their docket for next term and invalidating for the second time in an unsigned opinion the death sentence of a Texas inmate who claims that he is ineligible for the death penalty because he is intellectually disabled. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At E&E News, Ellen Gilmer reports that yesterday’s cert grant came in came in County of Maui, Hawaii v. Hawaii Wildlife Fund, “a case involving whether the law covers pollution that moves through groundwater before reaching a federal waterway,” and that “[e]nvironmental groups, states, industry and conservatives are watching the case closely, as its outcome could clarify or narrow EPA’s historical interpretation of the types of pollution discharges covered by the Clean Water Act.” Additional coverage comes from Ledyard King and Richard Wolf for USA Today, Brent Kendall and Jess Bravin for The Wall Street Journal, and Stephanie Sundier at Jurist.

In the death penalty case, Moore v. Texas, Lawrence Hurley reports for Reuters that “[t]he divided court ruled that a Texas appeals court misapplied the law by again rejecting an appeal brought by inmate Bobby Moore, 59, seeking to avoid execution on the basis of intellectual disability.” At The Daily Caller, Kevin Daley reports that “[t]hough Chief Justice John Roberts wrote a dissent from Ginsburg’s 2017 decision [in Moore’s favor], he voted with the majority Tuesday, releasing a short concurring opinion that said the Texas court ‘repeated the same errors that this Court previously condemned.’” Additional coverage comes from Thomas DeLorenzo at Jurist. Commentary comes from Kent Scheidegger at Crime & Consequences.

At The Wall Street Journal, Jess Bravin reports that “Justice Clarence Thomas issued a solo opinion Tuesday urging his colleagues on the Supreme Court to consider making it easier for public figures to sue news organizations.” At CNN, Tammy Kupperman and Sophie Tatum report that, in an opinion concurring in the denial of review in a defamation case, McKee v. Cosby, Thomas “called for reconsideration of a landmark First Amendment precedent, criticizing [New York Times v. Sullivan,] the 1964 decision that the Constitution creates a higher barrier for public figures to claim libel.” Adam Liptak reports for The New York Times that “Justice Thomas’s statement came in the wake of complaints from President Trump that libel laws make it too hard for public officials to win libel suits.” At the Constitutional Law Prof Blog, Ruthann Robson notes that Thomas “has essentially called for an abandonment of First Amendment concerns in the torts of defamation and libel.”

At Education Week’s School Law Blog, Mark Walsh reports that the court “declined to take up a challenge to a Kentucky law that makes it a crime for anyone to direct speech or conduct to a school employee that disrupts or interferes with normal school activities.” Patrick Eckerd reports at Jurist that the justices also “declined to hear Maryland’s bid to revive a 2017 law aimed at reining in prescription drug costs.”

Nina Totenberg reports at NPR that “Supreme Court Justice Ruth Bader Ginsburg — the oldest, tiniest and possibly most well-known justice — returned to her perch on the bench Tuesday, asking questions in a firm and strong voice.” Kevin Daley reports for The Daily Caller that “Ginsburg’s demeanor strongly suggested that she is aware of untoward speculation as to her health in recent weeks, which she sought to immediately dismiss as unfounded.” Mark Walsh has a first-hand account of Ginsburg’s return to the courtroom for this blog.

This blog’s analysis of yesterday’s lone oral argument in Return Mail Inc. v. United States Postal Service, which asks whether the federal government can challenge patents under the America Invents Act, comes from Ronald Mann. Additional coverage of the argument comes from Erik Slobe at Jurist.

At The Atlantic, Garrett Epps observes that the court’s decision in The American Legion v. American Humanist Association, a challenge to a World War I memorial shaped like a cross on public property, “will shape how courts around the country respond to monuments, official and ‘voluntary’ public prayer, and other official and semiofficial manifestations of popular faith and belief.” [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 Daily Signal, Elizabeth Slattery looks at the First Amendment issues in American Legion and 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 violating someone’s First Amendment rights.


  • For The New York Times, Adam Liptak writes that in Flowers v. Mississippi, which asks whether a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution, the justices could “put some teeth into Batson v. Kentucky, a 1986 decision that made an exception to the centuries-old rule that peremptory challenges are completely discretionary and cannot be second-guessed.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Feb. 20, 2019, 7:16 AM),