Wednesday round-up

Yesterday brought more developments in lower-court litigation stemming from the Trump administration’s decision to add a question about citizenship to the 2020 census, the subject of a separate case, Department of Commerce v. New York, which the Supreme Court is expected to decide this week. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. At The Daily Caller, Kevin Daley reports that “Solicitor General Noel Francisco sent a letter to the Supreme Court Tuesday asking the justices to address new evidence and an equal protection argument in its forthcoming ruling, even though those matters have not been explored in legal briefs or oral argument.” For The Wall Street Journal, Jess Bravin reports that the government’s request came after a “federal appeals court ordered a judge to review allegations the Trump administration added a citizenship question to the 2020 census intending to skew political power toward whites and Republicans.” At Slate, Richard Hasen argues that “Solicitor General Noel Francisco on Tuesday asked the Supreme Court to become complicit in a cover up of discriminatory activity by doing something the court does not and cannot do: decide a legal issue that is not before it.”

Subscript Law has a graphic explainer for Monday’s decision in Iancu v. Brunetti, in which the court held that a federal ban on the registration of “immoral” or “scandalous” trademarks violated the First Amendment. At NPR, Nina Totenberg and Domenico Montanaro observe that “[t]he 6-3 decision is also a victory for those seeking trademark protection for profane and even racist brand names.” At The Economist’s Democracy in America blog, Steven Mazie explains that “[a]ll the justices seem to agree that Congress can write a new law targeting flat-out profanity or vulgarity as long as only modes of expression—not ideas themselves—are cabined.” The editorial board of The Wall Street Journal observes that “[t]he majority showed judicial modesty by rejecting the invitation to rewrite the law in order to rescue it.” At Allen Matkins, Keith Bishop notes that the decision “almost certainly invalidates California’s ban [on immoral and scandalous marks] as well.”

At the Connecticut Law Tribune (registration may be required), Dwight Merriam calls the court’s ruling last week in Knick v. Township of Scott, Pennsylvania, in which the justices overruled a case that required property owners to follow state compensation procedures before bringing federal takings claim under the Constitution, “the dawn of a new era in takings litigation,” predicting that “[t]here will be more cases brought and more issues will be raised, further challenging the limits of public regulation.” At the Washington Legal Foundation’s Legal Pulse blog, Richard Samp argues that “Justice Kagan’s vitriolic dissent last Friday in Knick was far wide of the mark when it lambasted the Court’s decision to overrule the oft-criticized Williamson County Planning v. Hamilton Bank decision,” because “[n]one of the factors cited as reasons to respect precedent apply to Williamson County.”

Briefly:

• In the latest episode of SCOTUStalk, Amy Howe reviews Monday’s Supreme Court opinions and orders.
• At The National Law Journal (registration may be required), Tony Mauro tells how a Washington attorney landed his first Supreme Court argument by volunteering to represent a pro se petitioner; the court will hear Banister v. Davis next term.
• At the Chicago Daily Law Bulletin (subscription required), Daniel Cotter looks at Justice Clarence Thomas’ concurring opinion in Gamble v. United States, in which Thomas “challenged the court’s reliance on stare decisis,” noting that “[t]he coming terms will see if others join [Thomas] in revisiting a number of precedents.”
• At Covington’s Inside Energy & Environment blog, Thomas Brugato writes that the court’s decision Monday in Food Marketing Institute v. Argus Leader Media “significantly expanded the confidential commercial information protected from disclosure under the Freedom of Information Act (“FOIA”)—an issue that recurs repeatedly with respect to information submitted to EPA and other environmental regulatory agencies.”
• At ACS’ Expert Forum blog, Kathryn Kovacs explains why, although “the Supreme Court held that Congress did not unconstitutionally delegate its legislative power to the Attorney General … in the Sex Offender Registration and Notification Act,” Gundy v. United States “may have opened up a big can of worms.”
• At the Duke Center for Firearms Law’s Second Thoughts blog, Jacob Charles looks at the implications of Rehaif v. United States, in which the court held that to convict a defendant in U.S. illegally for violating a federal gun-possession law, prosecutors must show that defendant knew he was in the country illegally, observing that when combined with United States v. Davis, another recent decision that involves prosecutions for possessing a firearm, “the decision just might be a major change in criminal enforcement of gun regulations.”
• In an op-ed at The Daily Wire, Jeremy Dys suggests that the court may have declined to reach the merits in the case of a couple who refused on religious grounds to design a cake for a same-sex wedding, instead sending the case back to the lower court to determine whether administrative proceedings against the bakers were tainted by religious bias, “because state officials, driven by the virtue signals of a progressive social justice culture, continue to prejudge guilt and show hostility toward religion in public.”
• At the National Conference of State Legislators Blog, Lisa Soronen looks at Georgia v. Public.Resource.Org Inc., a case the court agreed on Monday to review, which asks whether works that lack the force of law, such as the annotations to Georgia’s code, can be copyrighted; she points out that “[t]he last time the Supreme Court reviewed the rule that government edicts can’t be copyrighted was 1888.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.]

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