Friday round-up

ANDREW HAMM MAY 31, 2019 10:05 AM

Yesterday challengers to the decision by Secretary of Commerce Wilbur Ross to include a question about citizenship in the 2020 census alerted the Supreme Court to new evidence indicating that a Republican redistricting strategist played a key role in Ross’ decision and that the question was included to create an advantage for whites and Republicans in future elections. Amy Howe has this blog’s coverage, which originally appeared at Howe on the Court. Michael Wines of The New York Times reports that the “disclosures represent the most explicit evidence to date that the Trump administration added the question to the 2020 census to advance Republican Party interests.” Additional coverage comes from Hansi Lo Wang of NPR, Tara Bahrampour and Robert Barnes of The Washington Post, Ari Berman of Mother Jones and Jess Bravin and Brent Kendall of The Wall Street Journal, who report that “[d]uring arguments in April, U.S. Solicitor General Noel Francisco told the justices the administration added the question to improve compliance with the Voting Rights Act of 1965, which protects minorities from discriminatory practices that dilute their political power.”

At Slate, Richard Hasen suggests that the revelation is “ironically more likely to lead the Republican-appointed conservative justices on the Supreme Court to allow the administration to include the question that would help states dilute the power of Hispanic voters.” Additional commentary comes from Raul Reyes in an op-ed at CNN.

Jess Bravin of The Wall Street Journal reports that “[b]y a 5-4 vote, the Supreme Court authorized Alabama’s Thursday night execution of Christopher Lee Price, ending a case that divided majority conservatives from the liberal minority over the constitutional obligation to protect condemned inmates from cruel and unusual punishments.” Additional coverage comes from Darran Simon and Marlena Baldacci of CNN, Melissa Brown of the Montgomery Advertiser, Ivana Hrynkiw of AL.com and Kim Chandler of The Associated Press. Amy Howe has this blog’s coverage, which originally appeared at Howe on the Court.

At Rewire.News, Imani Gandy disputes Justice Clarence Thomas’ portrayal of Planned Parenthood founder Margaret Sanger in his concurrence Tuesday in Box v. Planned Parenthood, in which the court overturned a lower court’s decision striking down an Indiana law with respect to a provision relating to the disposition of fetal remains by abortion providers but left the decision in place with respect to a provision barring abortions based on the disability, sex or race of the fetus. Gandy writes that “Thomas is correct in noting that Sanger ‘recognized the eugenic potential for her cause,’ but the conclusions that he draws from that recognition are wrong. Indeed, a close reading of Sanger’s work defies the characterization that Thomas attempts to lay at her feet.” Additional coverage of Thomas’ opinion comes from Eli Rosenberg of The Washington Post, while Subscript Law offers a graphic explainer for the court’s ruling.

Briefly:

• In the first of two-part piece at Balkinization, Simon Lazarus contests the narrative that political strategizing, not ideological convictions, drove Chief Justice John Roberts’ 2012 decision to vote to uphold the Affordable Care Act’s “individual mandate” in National Federation of Independent Business v. Sebelius.
• At The Economist’s Democracy in America blog, Steven Mazie reviews Republican Senate Majority Leader Mitch McConnell’s recent remarks in his home state of Kentucky that he would fill a Supreme Court vacancy in 2020 should one arise during the presidential election.
• For CNN Politics, AJ Willingham reviews seven past decisions overturning earlier cases that “illustrate what moves the Supreme Court to disrupt established law, and how it happens.”
• At The National Law Review, James Auslander looks at the court’s recent opinion in Sturgeon v. Frost, holding that Alaska’s Nation River is not public land and is exempt under the Alaska National Interest Lands Conservation Act from the National Park Service’s ordinary regulatory authority; Auslander observes that the court’s “reasoning also may serve as a check on federal regulation of other non-federal inholdings within conservation areas delineated by natural features rather than federal land boundaries.”
• Also at The National Law Review, Gary Pappas looks at Thomas’ opinion for the court on Tuesday in Home Depot U.S.A. Inc. v. Jackson, holding that neither of two removal provisions in federal law permit a third-party counterclaim defendant to remove a class-action claim from state to federal court; Pappas notes that Thomas, “[a]cknowledging that the ruling may be used as a tactic to prevent removal,” “invited Congress to amend the statute, stating ‘that result is a consequence of the statute Congress wrote.’” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.]
• In an op-ed for the Washington Examiner, Adam Carrington maintains that this week’s decision in Nieves v. Bartlett, holding that a plaintiff’s First Amendment retaliatory-arrest claim failed because police officers had probable cause to arrest him, “got the vote right, siding with the police officers” and “almost got the reasoning right, too. But only almost.”
• At The Daily Beast, Ronald Goldfarb argues that the 1967 case United States v. Lester & Buccieri, involving a conspiracy to falsely arrest and disgrace a politician, “sheds light on the current debate” over potential developments based on the Mueller Report.

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