On this second day of this unusual May session, the justices will hear – literally, only hear – oral argument in USAID v. Alliance for Open Society International, a First Amendment challenge to the enforcement against overseas groups of a requirement that recipients of federal funds to fight HIV/AIDS abroad have a policy opposing prostitution and sex trafficking. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Kayla Anderson and Prachee Sawant preview the case for Cornell Law School’s Legal Information Institute. At Constitution Daily, Marcia Coyle reports that this case and with one scheduled for argument tomorrow “are sequels to earlier cases that [the Supreme Court] decided[:] In the middle of a pandemic which is triggering new legal and constitutional questions, … the culture wars go on and on.”

Yesterday the justices heard argument remotely, with live audio, in U.S. Patent and Trademark Office v. Booking.com, which asks whether the addition of “.com” to a generic term creates a protectable trademark, for this blog. Mark Walsh has a “view” from the virtual courtroom for this blog. Jacob Baldinger discusses the issues in the case at Subscript Law, which also provides a graphic explainer. Nina Totenberg covers the argument for NPR. For The Washington Post (subscription required), Robert Barnes reports that “[t]he Supreme Court’s historic first teleconference oral argument went off relatively smoothly …, and its orderly round of questioning by the justices was enough to entice Justice Clarence Thomas, who usually asks no questions at hearings.” Tyler Olson and Bill Mears report at Fox News that it was “just [Thomas’] third time speaking during the sessions in over a decade.” At USA Today, Richard Wolf reports that the argument “was a good test run for the court, which will hear nine more cases by phone over the next nine days.” Additional coverage comes from Kevin Daley at The Washington Free Beacon and Jess Bravin for The Wall Street Journal (subscription required).

At Slate, Dahlia Lithwick and Mark Joseph Stern write that “[a]s oral arguments go, Booking.com was an object lesson in the fact that some of the court’s long-cherished preferences and rules are archaic and self-protective and probably silly.” Additional commentary comes from Howard Wasserman at PrawfsBlawg, who remarks that “[t]he big difference” from in-person arguments “is that the Justices were less the stars,” Josh Blackman at Reason’s Volokh Conspiracy blog (via How Appealing), Elie Mystal at The Nation, and the editorial board of The Wall Street Journal, which observes that the unprecedented teleconference format offered “a great chance for the public to witness the thoughtful Justice Thomas in action, so unlike the negative caricatures of him.”

The justices also added two cases yesterday to their merits docket for next term. In Edwards v. Vannoy, they will decide whether their recent ruling in Ramos v. Louisiana, holding that a unanimous jury is required in state criminal trials, applies retroactively to cases on federal collateral review. And in CIC Services v. IRS, they will consider whether the Anti-Injunction Act’s ban on lawsuits to stop assessment of taxes also bars challenges to IRS reporting and information-gathering mandates. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. Greg Stohr reports at Bloomberg that in CIS Services, the court “agreed to review a ruling that critics say would give the Treasury Department and Internal Revenue Service a sweeping shield from challenges to their regulations.” At Crime & Consequences, Kent Scheidegger “do[es] not see any plausible argument for retroactivity” in Edwards “[u]nder existing precedent.”

Briefly:

  • For The Wall Street Journal, Jess Bravin and Sadie Gurman report that “[o]lder inmates in a Texas prison asked the Supreme Court on Monday to reinstate protective measures against the coronavirus that have been blocked at the state’s request by a federal appeals court in New Orleans.”
  • At this blog, in a post originally published at Howe on the Court, Amy Howe discusses the results of a SCOTUSblog project that “tracked the distribution of tickets to the public line for every in-person argument session this term”; she concludes that the data helps “to demonstrate the immense public interest in the court’s oral arguments – and how the system in place this term often fell short of meeting that interest.”
  • In an op-ed for the Chicago Daily Law Bulletin, Daniel Cotter runs down recent developments at the Supreme Court.
  • At Slate, David Gans argues that “[t]he sweeping arguments for a total religious exemption” 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, “are profoundly inconsistent with the history of religious accommodation in this country and the backdrop against which the Framers crafted the First Amendment.”
  • At Vox, Ian Millhiser writes that the stakes in Our Lady of Guadalupe School v. Morrissey-Berru, in which the court will consider the scope of the “ministerial exception” to federal employment discrimination laws, “are profound[:] If an employee is classified as a ‘minister,’ they effectively lose their rights to be free from discrimination in the workplace.”

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Posted in Round-up

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (May. 5, 2020, 6:54 AM), https://www.scotusblog.com/2020/05/tuesday-round-up-529/