on May 4, 2020 at 6:58 am
This morning the Supreme Court will kick off a two-week session of oral arguments that will change its traditional practice in unprecedented ways: It will hear the arguments by telephone and it will provide live audio of the proceedings to the public. First up is U.S. Patent and Trademark Office v. Booking.com, which asks whether the addition of “.com” to a generic term creates a protectable trademark. Jessica Litman previewed the case for this blog. Soo Min Ko has a preview for Cornell Law School’s Legal Information Institute. At Dorf on Law, Michael Dorf explores “what’s at stake in the case,” noting that it “is not the first legal interaction between domain names and trademarks.”
Court-watchers are full of speculation about how the new format will pan out. At ABC News, Devin Dwyer reports that the setup provides “the first opportunity for a sitting American president — one who is party to cases before the court — to tune in live and potentially respond via Twitter.” For The New York Times, Adam Liptak reports that “[i]nstead of the unruly but productive commotion that characterizes the modern Supreme Court argument, the court has announced that the justices will ask questions one by one, in order of seniority.” For The Wall Street Journal, Jess Bravin and Brent Kendall report that “if other courts’ experiences are any guide, the new format could stray from the crisp hourlong sessions that Chief Justice Roberts strives to run.” At Freedom Forum, Tony Mauro talks to Bruce Collins of C-SPAN about why “the court’s unprecedented action will be a big event.” At Education Week’s School Law Blog, Mark Walsh reports that the live audio offers “some fresh content to offer starting next week to harried teachers and students struggling with remote learning.” At The Atlantic, Garrett Epps writes that “because oral argument is as much spectacle as substance, it’s worth thinking about the players in terms of their show-business analogues,” and he suggests a match for each of the nine justices.
At Ammoland, Dave Workman writes that “[i]n the process of once again kicking the legal can down the road on a Second Amendment case, the U.S. Supreme Court may have opened the door to finally take another case dealing with the right to keep and bear arms, thanks to a remark by Associate Justice Brett Kavanaugh in his short concurrence with the majority.” At the Duke Center for Firearms Law’s Second Thoughts blog, Darrell Miller notes that “[v]ery soon, the Court may decide the extent to which the Second Amendment protects a right to bear arms unrelated to a right to keep them[:]That in forty years the debate has gone from rights incidental to keeping, to rights to nationwide public carry, shows just how far the gun rights movement has broadened its ambitions, and how successfully it has moved the center of the conversation.”
At Constitution Daily, Marcia Coyle provides some background for the court’s request last week for additional briefing on whether two cases involving President Donald Trump’s efforts to shield his financial records from subpoenas issued to his accountant and lenders by three congressional committees present political questions that courts cannot resolve. At The New Yorker (via How Appealing), Jeannie Suk Gersen writes that “[t]his direction could be particularly appealing to the conservative majority, which may be loath to decide against the President but also doesn’t wish to endorse Trump’s disobedience of legal orders.”
At Slate, Leah Litman worries that with its upcoming decision in Seila Law v. Consumer Financial Protection Bureau, a constitutional challenge to the structure of the CFPB, “the Supreme Court appears poised to give the president more power over personnel, not less—and prevent Congress from protecting federal officials in the future.” At Balkinization, Simon Lazarus writes that “[p]ortentous for the Fed’s independence as is the pending CFPB controversy,” “two other recent cases intimate a far broader threat to the Fed’s essential role in managing crises like our current state.”
- At Quartz (via How Appealing), Ephrat Livni reports that for “for 23 organizations and corporations representing hundreds of thousands of employees that filed a “friend of the court” brief” in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a challenge to the government’s expansion of the “conscience exemption” to the Affordable Care Act’s birth-control mandate, the case presents “a multi-trillion-dollar economic issue.”
- At RealClear Markets, Ike Brannon and Kevin McGee discuss findings from research indicating that “a ruling in favor of the Trump Administration’s decision to terminate the Deferred Action for Childhood Arrivals” program, in Department of Homeland Security v. Regents of the University of California, “would harm the nation’s ability to respond to the pandemic created by the COVID-19 pandemic.”
- At Jost on Justice, Kenneth Jost notes that the court is considering “a pileup of petitions urging the justices to reconsider qualified immunity, a judicially created doctrine dating from the 1980s with no explicit legislative authorization” that excuses “seemingly unconstitutional conduct by law enforcement officers.”
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