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Tuesday round-up

Today the justices will hear argument in one case, United States v. Sineneng-Smith, which asks whether a federal law making it a crime to encourage or cause illegal immigration for financial gain violates the First Amendment. Gabriel Chin previewed the case for this blog. Allison Franz and Zora Franicevic have a preview for Cornell Law School’s Legal Information Institute.

Yesterday the court released orders from Friday’s conference, adding Fulton v. Philadelphia, a challenge to Philadelphia’s exclusion of Catholic Social Services from the city’s foster care system because the group will not place children with same-sex couples, to their merits docket for next term. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For The Wall Street Journal (subscription required), Jess Bravin and Brent Kendall report that “Monday’s announcement signals another step for the court’s conservative majority in re-examining the boundaries between church and state that some justices say improperly curtail many Americans’ religious exercise.” Additional coverage comes from Ronn Blitzer and Bill Mears at Fox News, Mark Walsh at Education Week’s School Law Blog, and Kevin Daley at The Washington Free Beacon, who reports that “the plaintiffs are asking the justices to overturn the 1990 case Employment Division v. Smith, which held that religious believers cannot claim exemptions from laws that apply to everyone in a neutral way,” a “move [that would] would have far-reaching implications.” Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog.

Ariane de Vogue reports at CNN that the court announced that it would “not take up an appeal from death row inmate Rodney Reed, who is challenging his sentence based in part on the fact that Texas relied on evidence that was later proven to be scientifically invalid”; “Reed’s death sentence is currently on hold due to separate state proceedings.” At The Washington Times, Christopher Vondracek reports that the court “will not hear a religious liberty lawsuit brought by a longtime Walgreens employee who was fired for not showing up to work on his Sabbath.” At Education Week’s School Law Blog, Mark Walsh reports that the court also “threw out rulings of the Puerto Rico courts that required the Roman Catholic Archdiocese of San Juan to pay nearly $5 million into a pension trust for employees of Catholic schools on the island.” At Healthcare Dive, Samantha Liss reports that “[t]he waiting continues for a definitive ruling on the fate of the ACA, threatened by a lawsuit led by Texas and other Republican states” as the justices did not act yesterday on cert petitions in the case.

For Capitol Media Services (via, Howard Fischer reports that the court “spurned a bid by Arizona Attorney General Mark Brnovich to sue California over how it applies its business tax on residents and investors here.” Kent Scheidegger weighs in at Crime & Consequences on the court’s refusal to exercise its original jurisdiction to consider the dispute, agreeing with Justice Clarence Thomas, who dissented from the order, that the court’s discretionary approach to these cases may violate the Constitution.

For The Wall Street Journal (subscription required), Jess Bravin reports that “[t]he Supreme Court was expected to dismiss D.C. sniper Lee Boyd Malvo’s appeal of his sentence of life in prison without the possibility of parole, after Virginia’s governor signed legislation Monday allowing juvenile convicts to seek freedom after serving 20 years.” At Crime & Consequences, Kent Scheiddeger writes that although “[t]here is no doubt that the case should now be removed from the Supreme Court’s docket, leaving the issue to be decided in another case,” “[i]t does matter how this is done.”

At yesterday’s argument in U.S. Forest Service v. Cowpasture River Preservation Association, Lawrence Hurley reports for Reuters, a majority of the justices “seemed inclined to find that the federal government had authority to grant a right of way for a proposed $7.5 billion natural gas pipeline to cross under the popular Appalachian Trail in rural Virginia.” Additional coverage comes from Kevin Daley at The Washington Free Beacon. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.] Amy Howe analyzes yesterday’s argument in Opati v. Sudan, which asks whether the current version of the terrorism exception to the Foreign Sovereign Immunities Act allows punitive damages for preenactment conduct, for this blog, in a post that first appeared at Howe on the Court.


  • Tony Mauro reports at The National Law Journal that former deputy U.S. Solicitor General Lawrence Wallace, who “retired from the solicitor’s office in 2003 after arguing 157 cases before the U.S. Supreme Court, a 20th century record,” and “who died February 13 at age 88, is being remembered as a fearless civil servant who .. resisted pressure from higher-level officials.”
  • In a column for The New York Times, Adam Liptak discusses Tanzin v. Tanvir, which asks whether a man who says the FBI “put him on the No-Fly List, barring him from boarding any planes leaving from or landing in American airports,” after he refused “to spy on his fellow Muslims” can sue the agents for damages.
  • In an op-ed at The Hill, Daniel Ortner urges the court to review New York City’s ban on advertising in rideshare vehicles, in Vugo v. City of New York, “and overturn old precedents that have given second-class status to commercial speech.”
  • At NPR, Martha Toll writes that in his new book, “Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America,” Adam Cohen “explores the court’s opinions over the past five decades and comes to a rueful conclusion: These decisions have greatly exacerbated America’s gap between rich and poor.”
  • In an op-ed for the Chicago Daily Law Bulletin (subscription required), Daniel Cotter reviews Ruth Marcus’ recent book, “Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.”
  • At the Constitutional Law Prof Blog, Ruthann Robson discusses Justice Sonia Sotomayor’s dissent to the court’s decision last week to allow the federal government to enforce a new “public charge” rule against green-card applicants.
  • At the Brennan Center for Justice, Ciara Torres-Spelliscy argues that Kelly v. United States, “a case about the scandal known as Bridgegate, is bringing together two troubling lines of precedent at the Supreme Court this term: the ever-escalating right to lie and the ever-shrinking definition of corruption.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Feb. 25, 2020, 7:02 AM),