Monday round-up

EDITH ROBERTS MAR 4, 2019 6:47 AM

Steven Mazie reports at The Economist that the oral argument last week 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, “added credence to the widespread hunch that the Supreme Court will save the Peace Cross[:] The question is how bold the justices will be.” At his eponymous blog, Ed Mannino notes that several justices expressed disapproval of “the highly-criticized three-part test set forth in Lemon v. Kurtzman” in 1971; he remarks that “[w]hile the Lemon case may not be the basis for the ultimate decision, it nevertheless received significant attention, particularly from the court’s newest members.” At Jost on Justice, Kenneth Jost observes that although “[t]he atheists and nonbelievers who brought this lawsuit seven years ago were fated to lose once it reached a Supreme Court that has been increasingly uninterested in policing the separation of church and state,” “they might have expected more respectful treatment in oral arguments.” In this blog’s new podcast, SCOTUStalk, Amy Howe breaks down the argument with NPR’s Nina Totenberg. [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 Letters Blogatory, Ted Folkman discusses last week’s opinion in Jam v. International Finance Corporation, in which the court held that international organizations have same immunity from lawsuits that foreign countries currently have, which would allow them to be sued in U.S. courts for their commercial activities. At the Human Rights at Home Blog, Margaret Drew cautions that “[b]efore Human Rights advocates begin drafting pleadings, it is worth considering other barriers to Jam and similar litigation,” but advises advocates to “savor this victory in an era where Human Rights successes are harder to come by.”

Briefly:

• At Law.com, Tony Mauro reports that “[f]or the first time since 2015, two Supreme Court justices … will go before a U.S. House of Representatives committee hearing [on Thursday] to answer questions about the court’s budget, an occasion that members of Congress have used in the past to raise a range of other issues.”
• At CNN, Joan Biskupic notes that “Chief Justice John Roberts has broken with his conservative brethren and joined liberal justices several times in recent weeks, in cases from abortion, to asylum policy to the death penalty,” but she discounts suggestions that “the Supreme Court will suddenly lunge left,” concluding that Roberts’ actions “reflect the instincts of a chief justice who wants to avoid wild fluctuations in the law, as well as criticism of the court as politically motivated in an increasingly polarized America.”
• At Dorf on Law, Michael Dorf explains why the court’s unsigned opinion last week in Yovino v. Rizo, in which the justices threw out a lower-court ruling because the decisive vote in the case came from a judge who died before the ruling was issued, “was not quite the no-brainer that the justices imagined.”
• At Law360 (subscription required), Edward Zelinsky looks at the recent decision in Dawson v. Steager, in which the court held that West Virginia cannot exempt some former state and local law-enforcement employees from taxation of their pension benefits without extending the same exemption to retired members of the U.S. Marshals Service, pointing out that a “state with a tax law like West Virginia’s which does nothing in the face of Dawson will find itself drawn into potentially intensive fact-based disputes about the comparability of exempted state employees and their taxed federal counterparts.”
• At the Emory Bankruptcy Developments Journal, law student Clayton Smith discusses the central issues in Mission Product Holdings Inc. v. Tempnology LLC, in which the justices will decide what happens to a trademark license when the brand owner goes bankrupt. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.]

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