Tuesday round-up

Today the Supreme Court will hear oral argument in two cases. The first is Shular v. United States, which asks whether what constitutes a “serious drug offense” under the Armed Career Criminal Act should be determined under the same approach used to determine whether an offense is a “violent felony” under the ACCA. Leah Litman previewed the case for this blog. Julia Canzoneri and Kayla Anderson have a preview at Cornell Law School’s Legal Information Institute. This morning’s second case is GE Energy Power Conversion v. Outokumpu Stainless, in which the court will consider whether the international convention governing the enforcement of foreign arbitral awards allows someone who has not signed an arbitration agreement to compel arbitration. This blog’s preview came from Ronald Mann; Cornell’s preview comes from Connor Grant-Knight and Angela Shin Wei Ting.

On Friday the court added six cases to its merits docket for the term, for a total of three hours of oral argument. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. Greg Stohr reports for Bloomberg that the court “agreed to hear the Trump administration’s bid to give employers and universities the broad right to claim a religious or moral exemption from the Obamacare requirement that they offer free birth control through their health-care plans.” For The New York Times, Adam Liptak reports that the court will also “decide whether members of the Electoral College may cast their votes for presidential candidates other than the ones they had pledged to support.”

At his eponymous blog, Michael Dorf questions the assumption behind a much-quoted question asked by Roberts during oral argument last week in Babb v. Wilkie: “that it would be harmful and certainly not required by statute for the Court to conclude that an occasional ‘okay Boomer’ constitutes age discrimination.” At Understanding the ADA, William Goren discusses the oral argument in Babb and assesses the case’s implications for the Americans with Disabilities Act.

At CNN, Joan Biskupic writes that “[t]he highly visible venue of the impeachment trial will challenge [Chief Justice John] Roberts, whose work across the street from the Capitol at the marble-columned court proceeds in a camera-free zone, mainly in closed chambers.” At Jost on Justice, Kenneth Jost notes that because “[i]n this trial, … the opposing sides flatly disagree on the underlying rules[,] Roberts may be forced to choose one side or the other.” At Politico Magazine (via How Appealing), Richard Primus suggests that “maybe [Roberts’] approaching the role like an umpire, rather than playing this or that angle on the trial, is … the best way to make the Court look the way he has always hoped it would.” Another look at Roberts’ role comes from Daniel Cotter at the Chicago Daily Law Bulletin (subscription required).

Briefly:

• At USA Today, Richard Wolf reports that “[t]hree moms from Montana will be at the Supreme Court Wednesday with a chance to make history on religious school choice”; “[w]hat they’re fighting over [in Espinoza v. Montana Department of Revenue] may seem small: a discontinued state program that offered $150 tax credits to help spur $500 tuition scholarships[, b]ut the stakes are high for both sides in the national debate over public aid for religious schools.”
• In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “talk about the riveting first opinions of 2020 and new grants, (Trump tax returns, failed 4th Amendment seizures, and more!)”; they also “recap oral argument in the ‘Bridgegate’ case and whether ‘Ok, Boomer’ is canceled.”
• At the Cato Institute’s Cato at Liberty blog, Jay Schweikert and Clark Neily note that “[t]here are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together — which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered.”
• In a new episode of Strict Scrutiny (podcast), [t]he full crew recaps two arguments from the January sitting (Kelly v. United States and Thole v. US Bank) and notes some uncomfortable interactions inside and outside of One First Street.”

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