SCOTUStoday for Tuesday, November 4

This newsletter has been updated to reflect the correct year for the Iranian Hostage Crisis and the fact that Reagan succeeded Carter, not Nixon. We apologize for the embarrassing error.

The Iranian Hostage Crisis began on this day in 1979. As CNN reported last week, the International Emergency Economic Powers Act played a role in President Jimmy Carter’s work to resolve the crisis; he invoked IEEPA to explain why he could use “frozen Iranian assets as a ‘bargaining chip.'” The Supreme Court later reviewed and upheld his interpretation of IEEPA, which was supported by his successor, President Ronald Reagan, in a decision that may play a role in this term’s tariffs case.

SCOTUS Quick Hits

• The justices will hear argument today in two cases: Coney Island Auto Parts Unlimited v. Burton (on whether there is a time limit for setting aside a judgment as void for lack of personal jurisdiction) and The Hain Celestial Group v. Palmquist (on what to do when a trial court improperly dismisses a defendant who would have deprived the court of jurisdiction to hear the case).
• SCOTUSblog will host a live blog on Wednesday during oral arguments in Learning Resources, Inc. v. Trump, in which the court will consider the legality of President Donald Trump’s tariffs. The live blog will begin at 9:30 a.m. EST and be shared by C-SPAN. Amy Howe will be interviewed on C-SPAN before the arguments and Zachary Shemtob will be interviewed on C-SPAN after the arguments have ended.
• Also after the tariffs argument, the Advisory Opinions podcast will be available on SCOTUSblog. Host Sarah Isgur will be joined by Amy, David French, Roman Martinez, and David Lat.
• Additional briefs in Trump v. Illinois, on Trump’s authority to federalize and deploy National Guard troops in Illinois, are due by next Monday, Nov. 10.
• There have been a great deal of questions about whether, given the government shutdown, the public is able to attend oral arguments. On its website, the court states that “[s]eating for the oral argument session will be provided to the public, members of the Supreme Court Bar, and press.”

Morning Reads

• Big business sits out the Supreme Court fight over Donald Trump’s tariffs (John Fritze, CNN) — The challenges to Trump’s tariffs that are now in front of the Supreme Court came from a group of states and small businesses, not large retailers. The names of well-known, large companies also won’t be found among the organizations that filed friend-of-the-court briefs on the tariffs, even though companies such as General Electric, Procter & Gamble, and Intel have weighed in on other recent, high-profile cases, according to CNN. Legal experts and “multiple people involved with the case” told CNN that major companies’ relative silence may stem from fear of retribution from the Trump administration or insulation from the immediate financial effects of the tariffs, as some “can switch supply chains or absorb the costs.”
• Judge extends block on Portland National Guard deployment through Friday (Jack Birle, Washington Examiner) — As the Supreme Court weighs whether to allow the Trump administration’s planned deployment of National Guard troops in Illinois, a federal judge has extended her block on deployment in Portland, Oregon. U.S. District Judge Karin Immergut’s “order blocking the deployment of any troops to Portland” is now in place until 5 p.m. PST on Friday, which Immergut said “would be the latest she will issue a final order on the matter,” according to the Washington Examiner. The “full bench” of the U.S. Court of Appeals for the 9th Circuit already has agreed to “review the legality of Trump’s federalization and deployment of troops to Portland, after a three-judge panel” blocked one of Immergut’s previous orders blocking deployment. In agreeing to rehear the case, the full 9th Circuit “vacated the three-judge panel’s ruling.”
• After mistaken deportation, Abrego Garcia fights smuggling charges. Here’s what to know (Travis Loller, Associated Press) — Kilmar Abrego Garcia, who was mistakenly deported by the Trump administration earlier this year but then returned to the U.S., continues to fight charges of “human smuggling and conspiracy to commit human smuggling,” according to the Associated Press. Two different Supreme Court decisions play a role in Abrego Garcia’s current legal battle: 1) An April order instructing the Trump administration to facilitate his return from El Salvador, which a federal agent has said prompted him to investigate Abrego Garcia’s potential involvement in human smuggling. 2) A June order allowing for deportations to third-party countries. The Trump administration hopes to deport Abrego to such a country soon. Hearings on the smuggling charges will take place Dec. 8-9 in Tennessee. Abrego Garcia has pleaded not guilty and asked for the charges to be dismissed “on the grounds of ‘selective or vindictive prosecution.'”
• Rancher lobbyist knocks Wyoming bill recognizing corner crossing’s court-decided legality (Angus M. Thuermer Jr., WyoFile) — Last month, the Supreme Court declined to hear a dispute on “corner crossing,” or the practice of briefly passing over private property to move between two catty-corner public lots. That left in place the U.S. Court of Appeals for the 10th Circuit’s ruling in favor of hunters who had been sued after using a ladder to cross over private land in Wyoming. But the debate over corner crossing there is far from over, according to WyoFile, because Wyoming lawmakers are considering a proposal that would offer slightly more freedom to hunters than the 10th Circuit did by allowing them to make “‘incidental contact’ with private private property” and not just enter private airspace while using a ladder.
• Demanding Kavanaugh Recusal in School Prayer Case Ignores History (Jeremy Dys, Bloomberg Law) — In a column for Bloomberg Law, Jeremy Dys addressed a recent call for Justice Brett Kavanaugh to “recuse himself from the consideration of a pending petition before the court” on a Christian school’s right to broadcast a prayer over the loudspeaker before a championship football game because of his past work on a similar case. “Kavanaugh’s filing an amicus brief more than 25 years ago in a similar school prayer case before the court isn’t grounds for recusal, any more than Justices Thurgood Marshall’s or Ruth Bader Ginsburg’s experiences arguing at the Supreme Court before ascending to the bench should have disqualified them from hearing cases they were familiar with as advocates,” contended Dys, senior counsel for First Liberty Institute, which represents the school.

A Closer Look: Diversity Jurisdiction

Diversity jurisdiction, which is perhaps all-too familiar to civil litigators and law students, will be at the center of today’s arguments in The Hain Celestial Group v. Palmquist.

So what is diversity jurisdiction? As Ronald Mann recently explained in SCOTUSblog, this allows federal courts to “hear cases that involve parties from different states even if the cases don’t raise any questions of federal law.” The founders added diversity jurisdiction to the Constitution out of distrust for state courts in certain circumstances; specifically, the fear that judges and juries in one state might unite against individuals and entities from another, such as out-of-state creditors trying to collect debts, or disputes over land claims across states. As Alexander Hamilton put it in Federalist No. 80, without a neutral federal referee, “local attachments” could stifle interstate trade and favor certain parties.

But there are caveats: As Congress made clear in the Judiciary Act of 1789, this only applied for cases with an “amount in controversy” worth more than $500 (a hefty sum back then). Furthermore, “complete diversity” is required, meaning no plaintiff can share a home state with any defendant.

Two centuries later, diversity jurisdiction has grown with America – and so have questions about whether it still makes sense. Congress increased the amount in controversy to $75,000 in 1996 to ease crowded dockets (diversity cases now fill about one-third of federal civil filings). Meanwhile, legal scholars disagree on the value of diversity jurisdiction, with some calling it an “outdated and irrational fear,” burdening federal courts with everyday state squabbles and allowing parties to shop for friendlier courts. On the other hand, proponents argue, among other things, that diversity jurisdiction “is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity.”

SCOTUS Quote

JUSTICE ALITO: … I mean, what I took from your brief is you’re saying Boyle‘s inconsistent with textualism. Who wrote Boyle?

MR. CHANG: Justice Scalia wrote it.

JUSTICE ALITO: I mean, so you’re saying the Founding Father of textualism doesn’t understand textualism.

— Hencely v. Fluor Corporation

On Site

Contributor Corner

President Trump’s Tariffs v. the Supreme Court’s Duties

In his latest Major Questions post, Adam White explored the nuances of the tariffs case and highlighted a few issues to watch for during oral arguments on Wednesday, including whether the justices seem to see the tariffs “as mainly a matter of foreign policy” or a potential infringement on “Congress’ ‘power of the purse.'” White also reflected on what will happen if the court rules against the Trump administration, contending that such a decision “may have less of an effect than it seems.”

What Can We Learn from the First Round of Oral Arguments?

In his latest Empirical SCOTUS column, Adam Feldman analyzed oral arguments during the October sitting, including what types of questions the justices asked and who spoke the most. The data suggested that, so far this term, the court is “pressing for workable standards and showing more interest in how decisions will be applied than in how they’ll read in textbooks,” Feldman wrote. “Whether that caution holds as more politically charged cases arrive remains to be seen.”