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Wednesday round-up

The Supreme Court will hear oral argument in two cases this morning. The first is Intel Corp. Investment Policy Committee v. Sulyma, which involves the interpretation of a statute of limitations in the Employment Retirement Income Security Act. Natalya Shnitser previewed the case for this blog. The second argument today is in Banister v. Davis, which asks whether and when a motion to alter or amend a judgment should be treated as a second or successive petition for habeas corpus. This blog’s preview came from Steve Vladeck.

Amy Howe analyzes yesterday’s argument in  Atlantic Richfield Co. v. Christian, in which the justices considered whether federal law preempts state-law claims for cleanup of hazardous waste beyond what the EPA has ordered, for this blog, in a post that first appeared at Howe on the Court. Andrew Chung reports for Reuters that in this “appeal by Atlantic Richfield Co of a Montana state court ruling allowing a group of private landowners within the sprawling site of its former Anaconda copper smelter in western Montana to bring their claims for restoration damages to trial,” “[m]uch of the argument focused on whether each landowner was considered a ‘potentially responsible party’ who must seek the EPA’s approval under the law before undertaking restoration of their own contaminated land.” At Bloomberg Environment, Sylvia Carignan and Ellen Gilmer report that “[j]ustices on both ends of the ideological spectrum seemed troubled by the prospect of hindering landowner rights, but reluctant to interfere with the Environmental Protection Agency’s authority.” For The Washington Post (subscription required), Robert Barnes reports that “[s]everal justices floated the possibility that a compromise might be that landowners could seek greater compensation from polluting companies only if their plans for using the money received EPA approval.”

At FiveThirtyEight (via How Appealing), Amelia Thomson-DeVeaux offers “a quick and dirty primer” on how the Supreme Court may handle the president’s “separate legal battles with New York state prosecutors and House Democrats over whether eight years of his tax returns must be released.” At Slate, Becca Damante and Brianne Gorod explain that the court “need not wait until next summer to decide these cases, as it might under an ordinary schedule.”


  • Ronald Mann analyzes Monday’s argument in Georgia v. Public.Resource.Org Inc., which asks whether the annotated version of a state legislative code can be copyrighted, for this blog. [Disclosure: Arnold & Porter, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.]
  • Jesse Newman reports for The Wall Street Journal (subscription required) that “[w]ater stress, a hallmark of the American West, is spreading east,” as evidenced by “Florida v. Georgia, one of three interstate water disputes pending before the Supreme Court.”
  • At the Sentencing Law and Policy Blog, Douglas Berman highlights “a handful of cases scheduled for oral arguments over the next two weeks [that] ought to be of interest to criminal justice fans.”
  • In an article available at SSRN, Nicholas Stephanopolous argues that, whereas “[o]nce upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review,” the Supreme Court’s decision last term in Rucho v. Common Cause, holding that partisan-gerrymandering challenges to electoral maps are political questions that are not reviewable in federal court, “flips Carolene on its head.”
  • At the National Law Journal,  Anthony Franze and Reeves Anderson analyze the Supreme Court’s amicus docket last term, concluding that “amici continued to play an important institutional role at the Supreme Court, and that certain types of briefs got noticed more than others.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Dec. 4, 2019, 6:56 AM),