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Friday round-up

Yesterday the court issued a unanimous decision in trademark case Lucky Brand Dungarees v. Marcel Fashions Group, holding that because Marcel is raising claims it did not raise in a previous suit between the parties, Lucky Brand is not precluded from raising new defenses. Megan La Belle analyzes the opinion for this blog.

For The Wall Street Journal (subscription required), Brent Kendall and Jess Bravin cover Wednesday’s arguments in Chiafalo v. Washington and Colorado Department of State v. Baca, which ask whether the Constitution prevents states from requiring their presidential electors to vote as state law directs, noting that “[s]everal justices acknowledged that the framers might have originally envisioned electors exercising some independent judgment, but they also worried of potentially seismic disruptions if electors increasingly defied the popular will.” At the Election Law Blog, Rick Pildes pushes back against the electors’ argument that chaos might also result from a ruling for the states, explaining why “[t]he Court should feel free to resolve the cases without any concern that permitting states to bind their electors creates any meaningful risk, even if we ever face, for the first time, a situation in which a winning candidate dies in the 5-6 weeks between the election and the meeting of the Electoral College.” At Reason’s Volokh Conspiracy blog, Josh Blackman points to “a non-jurisdictional problem” in Baca.

For The Economist, Steven Mazie predicts after Tuesday’s oral argument in Trump v. Mazars and Trump v. Vance, which involve the president’s efforts to shield his financial records from subpoenas issued to his accountant and lenders by three congressional committees and a New York grand jury, that “Mr Trump may win a majority in Trump v Mazars—keeping his finances out of the newspapers, for now[, b]ut he seems likely to lose Trump v Vance, the clash over the New York subpoena (if so, only the grand jury would be privy to Mr Trump’s records while he remains in office).” Also at Volokh Conspiracy, Blackman and Ilya Somin exchange thoughts here, here and here about an advocate’s answers in Mazars.

At National Review’s Bench Memos blog, Victoria Dorfman and others maintain that in  Our Lady of Guadalupe School v. Morrissey-Berru, which asks whether the “ministerial exception” to federal employment discrimination laws should apply to certain teachers at religious schools, the court should “focus on the functions the teachers performed, not on their titles or their status as ‘lay’ teachers.” Additional commentary comes from Andrea Picciotti-Bayer in an op-ed for The Washington Times, Ashley McGuire at The Federalist, who contends that “[u]sing claims of discrimination as a wedge in the door for government bureaucrats would end religious education and the religious rights of parents to educate their children according to the dictates of their faith.”

For The Wall Street Journal, Jess Bravin reports that the court “Thursday rejected an inmate request to reinstate special precautions against the coronavirus a federal judge had ordered for a Texas prison, siding with state officials who argued they had taken adequate measures.” Adam Liptak reports for The New York Times that”Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued a seven-page statement expressing concern about the plight of the nation’s prisoners.”


  • At Bloomberg Law, Kimberly Robinson looks into how Supreme Court sketch artists are spending their time now that “nobody knows when the justices will again convene in public.”
  • At The Federalist Society blog, Adam Mossoff argues that”[i] f [the Supreme Court] permits tech giants like Google to ignore copyright laws for their own commercial profit” in Google v. Oracle America, a dispute over the copyright status of application programming interfaces, “this not only encourages more theft, it discourages the innovative and creative work that has been the driver of America’s innovation economy since 1790.” [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 Bench Memos, Ed Whelan urges the justices to review Higginson v. Becerra, a cert petition arguing “that the California Voting Rights Act is unconstitutional because it forces California municipalities to overhaul their electoral systems based solely on racial considerations.”
  • In an op-ed for Newsweek, Lael Weinberger finds it “likely that the livestream of oral arguments will ameliorate polarization rather than exacerbate it[:] The livestream gives any interested member of the public an unmediated view of the Court.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (May. 15, 2020, 6:56 AM),