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Tuesday round-up

Yesterday the court released opinions in four argued cases, by posting the rulings on its website at five-minute intervals rather than delivering them from the bench as it usually does. Kevin Daley reports at The Washington Free Beacon that it was “the first time since Bush v. Gore that the justices issued rulings without reading decisions from the bench during an official public session.” In Kahler v. Kansas, the justices ruled 6-3 that the Constitution’s due process clause does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Jess Bravin reports for The Wall Street Journal (subscription required) that although “[t]he court left open the possibility of a future challenge under the Eighth Amendment, which forbids cruel and unusual punishments,” “Monday’s decision exemplifies a significant turn in the philosophy of criminal law.”

In Comcast v. National Association of African American-Owned Media, a unanimous court held that a plaintiff who sues for racial discrimination in contracting under federal law has to plead and prove that race was a but-for cause of his injury. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court.  For the Los Angeles Times, David Savage reports that the opinion dealt “a setback to Los Angeles TV producer Byron Allen, who maintained that Comcast refused to carry his channels on its cable network because he’s black.” Richard Wolf reports for USA Today that “[a] key issue in the case before the Supreme Court was whether [Allen’s] network must show that race was the sole reason for the denial of a contract or just one factor.” At Trialdex, Ed Hagen notes that “[t]he Supreme Court has not spoken definitively on the proper standard for this inquiry in … employment discrimination cases” under the Americans with Disabilities Act,” and suggests that today’s decision “indicates that the ‘but for’ test is the correct test in ADA discrimination cases.”

The court also held unanimously in Allen v. Cooper that the Constitution did not give Congress the power to revoke the states’ immunity from suit for copyright infringement in a 1990 law. This blog’s opinion analysis comes from Howard Wasserman. At Education Week’s School Law Blog (subscription or registration required), Mark Walsh reports that “[t]he copyright decision stems from a colorful case involving the 1996 discovery of the wreck of the Queen Anne’s Revenge, the flagship of the notorious pirate Edward Teach, or Blackbeard, off the coast of North Carolina.” Andrew Chung reports at Reuters that “[t]he case tested the balance between the right of individuals to protect their creations through copyrights and the fact that states typically are shielded under the U.S. Constitution from lawsuits seeking damages through sovereign immunity.” At PrawfsBlawg, Wasserman wonders why the separate opinions in Allen were designated concurrences in the judgment.

And in Guerrero-Lasprilla v. Barr, the court held 7-2 that an immigration board’s denial of a  request for equitable tolling of the deadline to file a statutory motion to reopen a deportation case presents a question of law, which can be reviewed by courts. Kit Johnson has this blog’s opinion analysis. Jess Bravin reports for The Wall Street Journal (subscription required) that the court “rejected the Trump administration’s arguments that federal appeals courts had no authority to review the facts underlying deportation decisions for certain classes of immigrants.”

The court also released orders yesterday from Friday’s conference, which was conducted largely by phone, with only Chief Justice John Roberts at the court, the Supreme Court’s spokeswoman said yesterday. The justices did not add any new cases 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.


  • At Fortune (subscription required), Jeff John Roberts reports that although “[a]n obvious way for the Supreme Court to respond” to the public health challenge that has prompted it to postpone oral arguments “is by following the example of other courts and embrac[ing] technology like live-streaming to make closed proceedings accessible,” “some legal experts are skeptical the court will embrace such a change—even when faced by the dramatic circumstances of the pandemic.”
  • In an op-ed at The Chicago Daily Law Bulletin (subscription required), Daniel Cotter observes that “[t]he challenges of COVID-19 and the short-term ramifications are felt by all, and the Supreme Court is no exception.”
  • In the latest episode of Strict Scrutiny (podcast), Kate Shaw, Melissa Murray and Leah Litman “recap the argument in June Medical Services v. Russo and discuss the coronavirus and the Court.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Mar. 24, 2020, 6:52 AM),