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Tuesday round-up

The justices decided two cases yesterday. In Bucklew v. Precythe, the court, by a vote of 5-4, rejected a death-row inmate’s argument that, because he suffers from a rare medical condition, executing him by lethal injection would be so painful that it would violate the Constitution’s ban on cruel and unusual punishment. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that the decision “revealed fault lines and considerable friction over the use of the death penalty.” David Savage reports for the Los Angeles Times that the court held that “the Constitution does not guarantee a ‘painless death’ for condemned murderers.” Additional coverage comes from Kevin Daley at The Daily Caller and Jess Bravin for The Wall Street Journal, who reports that the majority opinion “suggest[s] intense frustration with procedural claims that can keep an inmate on death row for decades after sentencing.” Commentary on the majority opinion comes from Kent Scheidegger at Crime & Consequences, who writes that it contains “the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.]

In Biestek v. Berryhill, the court held 6-3 that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that an applicant can do “other work,” even if the expert does not provide the data she used to form her opinion. At Law360, Emily Brill reports that the court directed judges to “take a ‘case-by-case’ approach to whether vocational experts’ opinions are solid enough to trust without supporting data.”

Yesterday the court also released orders from last week’s conference, agreeing to review a Fourth Amendment case next term and taking no action on several high-profile petitions involving the scope of federal employment-discrimination laws, the constitutionality of an Indiana law regulating abortions, and a couple’s refusal on religious grounds to create a custom cake for a same-sex wedding. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court.

At SCOTUS OA, Tonja Jacobi and Matthew Sag analyze last week’s oral arguments in partisan-gerrymandering cases , Rucho v. Common Cause and Lamone v. Benisek, concluding that “proportional representation was the issue of the day.” At the Moritz College of Law blog, Edward Foley offers “a way to simplify the First Amendment analysis that is causing the Court (and the litigants) so much trouble.”


  • At, Tony Mauro reports that although no other justice joined Justice Clarence Thomas’ recent opinion suggesting that the court re-examine seminal libel case New York Times v. Sullivan, “Thomas’ solo complaint was still significant, because it marked the first time in decades that Sullivan was under the court’s microscope.”
  • At The George Washington Law Review’s On the Docket blog, Cori Alonso-Yoder weighs in on the court’s decision in Nielsen v. Preap, in which the court 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, arguing that “long term detention of several categories of individuals without the opportunity for judicial review … should be justified with some stronger stuff than the mere diagramming of sentences.”
  • At Take Care, Joshua Matz “explain[s] why the government’s arguments against judicial review” 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, “are meritless.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Apr. 2, 2019, 6:59 AM),