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Thursday round-up

Supreme Court steps with the Library of Congress in the background

At Subscript Law, Daniel Kohrman offers a graphic explainer for Babb v. Wilkie, which was argued yesterday and which asks whether federal employees suing under the Age Discrimination in Employment Act must prove that age discrimination was a but-for cause of an adverse employment action. Nina Totenberg reports at NPR that the case “could affect more than a million federal workers over the age of 40.” For The New York Times, Adam Liptak reports that “the justices were unusually engaged” in yesterday’s argument, “[p]erhaps … because they are themselves older federal workers, albeit ones with life tenure.” At the Daily Caller, Kevin Daley reports that “Chief Justice John Roberts wondered if the phrase ‘OK, boomer,’ popular among young people as a dig at baby boomers, might be enough to prove actionable bias against older workers,” “express[ing] concerns that such an expansive theory would chill speech.” Mark Walsh offers a “view” of the argument from the courtroom for this blog.

Ronald Mann has this blog‘s analysis of Tuesday’s argument in trademark case Romag Fasteners v. Fossil, Inc. At The National Law Journal, Scott Graham reports that the court “sounded ready … to loosen up what some intellectual property lawyers contend is a rigid rule requiring a threshold showing of willfulness to recover [an] infringer’s profits for a trademark violation.”


  • At Education Week, Mark Walsh examines the history of the “’baby Blaine’ amendments—state constitutional measures that in some form or other bar government aid to religious denominations and religious schools” — at issue in Espinoza v. Montana Department of Revenue, which involves a Montana tax-credit program for contributions to a fund providing scholarships that could be used at private schools, including religious schools.
  • Clyde McGrady reports at Roll Call that Justice Brett Kavanaugh, who, as the junior justice, oversees the Supreme Court cafeteria, “has already left his mark on the Supreme Court, and it is pizza,” which McGrady ranks “just below Pizza Hut and just above the average gas station offering.”
  • At Final Decisions, Bryan Lammon discusses Tuesday’s opinion in Ritzen Group Inc. v. Jackson Masonry, LLC, holding that a bankruptcy court’s order denying a creditor’s motion to lift the automatic stay of debt-collection efforts is a final order that the creditor can appeal, hoping that “[i]f litigants invoke Ritzen Group’s discussion of piecemeal appeals, … courts will quickly discount that discussion’s relevance outside of the bankruptcy context.”
  • At The Illusion of More, David Newhoff asks whether Google v. Oracle America, a dispute over the copyright status of application programming interfaces, “is really about the copyrightability of Oracle’s declaring code in Android, rather than a challenge to the copyrightability of computer code in general—or to any protected works for that matter.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
  • At CitiesSpeak, Lisa Soronen looks at City of Chicago v. Fulton, which asks “whether a local government must return a vehicle impounded because of code violations immediately upon a debtor filing for bankruptcy.”
  • In an op-ed for The New York Times, Linda Greenhouse argues that two cases pending in the Supreme Court, an abortion case and a challenge to the Affordable Care Act, and one likely on the way there, El Paso’s bid to stop construction of part of the border wall, show how “[t]he president’s lawyers have weaponized the doctrine of standing.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jan. 16, 2020, 7:05 AM),