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Wednesday round-up

The justices will hear argument in one case this morning: 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. Amy Howe previewed the case for this blog, in a post that was first published at Howe on the Court. Cecilia Bruni and Brady Plastaras have a preview at Cornell Law School’s Legal Information Institute. At AP, Jeff Amy and Mark Sherman report that “[t]he state, defending the conviction, argues that [the] justices must narrow the focus from [District Attorney Doug] Evans’ broader record to the case at hand.”

Yesterday the court issued three opinions. In Nielsen v. Preap, the court held 5-4 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. Adam Liptak reports for The New York Times that the court “adopted a strict interpretation of a federal immigration law, saying it required the detention of immigrants facing deportation without the possibility of bail if they had committed crimes, including minor ones, no matter how long ago they had been released from criminal custody.” For The Wall Street Journal, Jess Bravin reports that this is “the second 5-4 decision in a year to adopt the government’s expansive definition of aliens subject to mandatory detention.” Kevin Daley reports for The Daily Caller that “[t]he majority connected Tuesday’s case to the ongoing dispute over sanctuary jurisdictions, which refuse to cooperate with federal immigration authorities.” At the Yale Journal on Regulation’s Notice & Comment blog, Michael Kagan observes that “[t]he words ‘Chevron’ and ‘defer’ do not appear anywhere in any of the opinions,” and that “[w]hile we should not be surprised by Chevron’s practical irrelevance in Nielsen v. Preap, we should be frustrated by the justices’ continued refusal to explain why Chevron doesn’t matter in cases like this.”

In Washington State Department of Licensing v. Cougar Den Inc. the court ruled 5-4 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. At Law360 (subscription required), Andrew Westney reports that, according to Justice Stephen Breyer’s plurality opinion, “the tax constituted a tax on the transportation of fuel and therefore fell within the tribe’s treaty right”; “[i]n a concurrence, Justice Neil Gorsuch [said] … that the tribe deserves the benefits it negotiated for in ‘a bargain-basement deal’ with the federal government.” At NPR, Nina Totenberg reports that “[o]n this conservative court, Gorsuch has been one of the most conservative voices,” “[b]ut in cases involving Indian treaties and rights, he is most often counted among those sympathetic to Indian claims.” At E&E News, Ellen Gilmer reports that “[t]he decision is a win for the tribal company, the Yakama Nation and other tribal advocates, who view the case as a broader statement on respect for tribal treaty rights.”

And in Air and Liquid Systems Corp. v. DeVries, the court held 6-3 that in the maritime law context, product-liability defendants can be held liable for injuries caused by products that were added to the companies’ products by third parties after the point of sale. Ronald Mann analyzes the opinion for this blog. According to Peter Hayes at Bloomberg Law, the court ruled that “[m]anufacturers have a duty to warn when their product requires incorporation of a part such as asbestos that the manufacturer knows is likely to make the integrated product dangerous for its intended use.” At Law360 (subscription required), Emily Field reports that the ruling “affirm[s] the special protections extended to sailors under maritime law.” At the Cato Institute’s Cato at Liberty blog, Walter Olson worries that “[t]he implications of assigning retrospective liability to actions lawful at the time loom large and disturbing over continuing expansions of liability like the one announced in today’s case.”  [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.]

At AP, Mark Sherman reports that “President Donald Trump’s two Supreme Court appointees were on opposite sides of two of [the] three cases that the justices decided Tuesday,” noting that “[t]he two new justices have solidified conservative control of the Supreme Court, but they do not march in lockstep, at least in the small corners of the court’s work dealing with Indian treaties and maritime law.”


  • Mark Walsh analyzes yesterday’s oral argument in Cochise Consultancy v. United States, ex rel. Hunt, which asks whether the “discovery” exception to False Claims Act statute of limitations applies to private parties in cases in which the government has not intervened, for this blog. [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 respondent in this case.]
  • At The Economist’s Democracy in America blog, Steven Mazie calls Monday’s oral argument in Virginia House of Delegates v. Bethune-Hill, an appeal by Republican legislators of a lower-court ruling that requires 11 state legislative districts to be redrawn to correct racial gerrymandering, “bracing but, given its context and timing, rather belated.”
  • At Fox News, Bill Mears identifies a “hot new topic on the 2020 presidential campaign trail: several Democratic contenders are talking up plans to overhaul the Supreme Court, with some offering proposals to add up to 10 more members.”
  • Kathryn Moore has this blog’s analysis of Monday’s oral argument in Smith v. Berryhill, which asks whether dismissal as untimely of a Supplemental Security Income claimant’s request for review is a final decision subject to judicial review.
  • Garrett Epps writes for The Atlantic that on “Monday the Court granted cert. in four new criminal-justice cases that, by and large, lack a strong partisan valence.”
  • At The National Law Journal (subscription or registration required), Tony Mauro reports that the court also “denied the latest petition from a black Georgia death row inmate who is claiming juror racial bias, prompting an angry statement from Justice Sonia Sotomayor.”
  • At Keen News Service, Lisa Keen calls the court’s denial on Monday of a cert petition “from the owner of a bed and breakfast in Hawaii who refused to accommodate a same-sex couple … represents a small victory for LGBT legal activists who have found themselves defending against a growing number of businesses seeking the right to discriminate against LGBT people by claiming their religion requires them to do so.”
  • In an op-ed for the Washington Examiner, Texas Attorney General Ken Paxton urges the court to review Klein v. Oregon Bureau of Labor and Industries, which stems from the owners of a custom bakery’s refusal on religious grounds to make a cake for a same-sex wedding, arguing that “[i]f the State of Oregon can force the Kleins to express messages contrary to their religious beliefs, there is little to stop a future Congress from imposing similar laws on everyone, including my fellow Texans.”
  • The editorial board of The Washington Post argues that, in Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, “[t]he justices have their pick of reasons to forbid the Commerce Department from sabotaging the census.”
  • At The World and Everything in It (podcast), Mary Reichard unpacks the oral arguments 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, and Mont v. United States, in which the justices considered whether a period of pretrial imprisonment can toll a term of federal supervised release.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Mar. 20, 2019, 6:53 AM),