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Thursday round-up

Mark Walsh has a first-hand look at yesterday’s argument 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, for this blog. At NPR, Nina Totenberg reports that the court “signaled strongly … that it is likely to rule for a death row inmate in Mississippi who was prosecuted six times for the same crime by a prosecutor with a history of racial bias in jury selection.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “[a] key issue in the argument was whether the Supreme Court, in deciding the case before it, could take into consideration only Flowers’ most recent trial or also look at the race-laced record of the previous five trials.” At The Daily Caller, Kevin Daley reports that “[t]he Supreme Court seemed largely united in its sympathy for Flowers and in the feeling that [prosecutor Doug] Evans’s prior conduct was relevant.” Jess Bravin reports for The Wall Street Journal that the “dramatic arguments … concluded with a rare question from Justice Clarence Thomas.”

Yesterday the justices released two opinions. Obduskey v. McCarthy & Holthus LLP, the court held unanimously that the definition of “debt collector” under the Fair Debt Collection Practices Act does not include attorneys who effect nonjudicial foreclosures. In a per curiam opinion, the court also sent Frank v. Gaos, a case involving “cy pres” settlements, which distribute the proceeds of a class action to a charity if it is not feasible to compensate the class members directly, back for the lower court to determine whether the plaintiffs have a legal right to sue. Ronald Mann analyzes the opinion for this blog. At the National Law Review, Gregory Sczewczyk and Philip Yanella write that “[t]he Court’s holding serves as a reminder that despite the recent trend in finding standing for privacy violations, it can still be an open issue.” Also at the National Law Review, Joshua Dunlap notes that a dissent by Justice Clarence Thomas “indicates the uncertain footing of cy pres settlements, or at least cy pres-only settlements.”

Jennifer Chacón analyzes Tuesday’s opinion in Nielsen v. Preap, which held that a noncitizen does not become exempt from mandatory detention if, after he has been released from criminal custody, immigration agents do not take him into immigration custody immediately, for this blog. David Savage covers the opinion for the Los Angeles Times. At The Economist’s Democracy in America blog, Steven Mazie writes that “[a] long-running disagreement over how to read statutes fuels the split between the court’s liberals and conservatives.” Commentary on the case comes from Kent Scheidegger at Crime & Consequences, here and here.

This blog’s analysis of Tuesday’s opinion in Washington State Department of Licensing v. Cougar Den Inc. in which the court ruled that members of an Indian tribe are exempt under an 1855 treaty from paying state taxes on fuel transported to the reservation on public highways, comes from Bethany Berger. At Bloomberg Law, Kimberly Robinson reports that the case suggests that “Justice Neil Gorsuch may prove to be a reliable vote for tribal groups coming before the U.S. Supreme Court.”


  • At Empirical SCOTUS, Adam Feldman uses the Supreme Court Database to “assess the extent to which [Chief Justice John] Roberts has moved left versus the Court moving right.”
  • At the National Conference of State Legislatures Blog, Lisa Soronen looks at a new addition to next term’s docket: Kansas v. Garcia, which asks whether federal law pre-empts a state prosecution for identity theft for using someone else’s Social Security number.
  • At The Daily Signal, Elizabeth Slattery and Elisabeth Daigle highlight the notable cases on the March argument docket.
  • At the Federalist Society Review, Alexandra McPhee writes that in cases like The American Legion v. American Humanist Association, an establishment clause challenge to a World War I memorial shaped like a cross on public property, “[a] historical approach for the courts and a reliance on the flexibility and responsiveness of the political branches is the best formula for a robust protection of religion—all religions—in the public square.” [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 U.S. Chamber Litigation Center, Daryl Joseffer explains why the federal government’s middle-ground position in Kisor v. Wilkie, in which the justices will reconsider precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, reveals that “the government knows that Auer deference stands on shaky legal ground and is doing what it can to preserve what it can.”
  • At his eponymous blog, Sheldon Nahmod unpacks the implications for Section 1983 civil-rights suits of Timbs v. Indiana, in which the court held that the Eighth Amendment’s ban on excessive fines applies to states and localities.

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Mar. 21, 2019, 7:12 AM),