Thursday round-up

Yesterday the court heard argument in Comcast v. National Association of African American-Owned Media, in which the justices considered whether, in a claim under a federal statute that prohibits race discrimination in contracting, a plaintiff is required to show that the defendant’s action would not have been taken but for the alleged discrimination. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[a] cautious Supreme Court … seemed to be looking for a narrow way to rule in a racial discrimination case against Comcast, the nation’s largest cable company, by a black entrepreneur who contends his race played a role in the company’s decision not to carry programming from his network.” Richard Wolf reports for USA Today that the court “appeared likely … to let [the] claim … go forward, even though it might be difficult to prove,” [b]ut both liberal and conservative justices indicated that while there may be enough evidence of racial bias for now, [the plaintiffs] eventually would have to prove that race was the deciding factor for Comcast.”

At The National Immigration Law Center blog, Trudy Rebert observes that in Department of Homeland Security v. Regents of the University of California, a high-profile challenge to the Trump administration’s decision to terminate the DACA program that was argued on Tuesday, the court is “being asked to decide what government accountability means in our democracy.” At Reason’s Volokh Conspiracy blog, Josh Blackman worries that the court may “rule that the rescission memorandum is not subject to judicial review,” which would “leave open the legality of the policy for the foreseeable future”; he cautions that “[a] punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.”

At Quartz, Ephrat Livni looks at Tuesday’s argument in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border, suggesting that “it may well turn out that the court and the executive branch—which found [the agent] didn’t use excessive force—do speak with one voice.” Steven Mazie writes at The Economist that “[t]he ruling seems destined to come out 5-4 and hinge on Justice Brett Kavanaugh, who was alternatively receptive to and critical of both sides.” At Slate (via How Appealing), Mark Joseph Stern argues that a ruling against the family would invite Customs and Border Patrol to “ignore the Constitution altogether.”

At The Marshall Project, Maurice Chammah writes that “[t]he case of Rodney Reed, who is scheduled to be executed in Texas on Nov. 20, is unique not only because of the celebrities promoting his claims of innocence,” but “also because of the sheer volume of evidence implicating someone else for the crime for which Reed was sentenced to die, the 1996 murder of Stacey Stites, in Bastrop, Texas.” Jordan Smith takes a close look at the case at The Intercept.

Briefly:

• For this blog, Katie Bart reports that last night the court allowed the execution of Ray Jefferson Cromartie, who was sentenced to death for the 1994 murder of Richard Slysz, to go forward; Georgia executed Cromartie by lethal injection at 10:59 p.m.
• Greg Stohr reports at Bloomberg that “Justice Ruth Bader Ginsburg missed Wednesday’s … argument session, staying home with what a court spokeswoman said was a stomach virus.”
• Ronald Mann analyzes yesterday’s argument in Ritzen Group Inc. v. Jackson Masonry, LLC, in which the court will decide whether an order denying a creditor’s motion to lift an automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal, for this blog.
• At Reuters’ On the Case blog (via How Appealing), Alison Frankel observes that the court’s denial Tuesday of a cert petition by firearms manufacturer Remington in a case brought by relatives of the victims of the Sandy Hook shootings “left open a pathway for more litigation against an industry that has been almost entirely shielded for 15 years.”

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