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The Supreme Court will release orders from the March 22 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday and Wednesday.
On Monday the Supreme Court hears oral argument in PDR Network, LLC v. Carlton & Harris Chiropractic Inc.; Christopher Walker has our preview.
On Monday the Supreme Court also hears oral argument in The Dutra Group v. Batterton; Joel Goldstein has our preview.

On Wednesday, the Supreme Court unanimously affirmed the U.S. Court of Appeals for the 10th Circuit in Obduskey v. McCarthy & Holthus LLP, holding that parties who enforce security interests are not debt collectors within the meaning of the Fair Debt Collection Practices Act provided that they do no more than the bare minimum required by state law to enforce the security interest. Justice Stephen Breyer’s opinion for the court is short and primarily focused on the text of the statute. After the argument, in which the justices sounded skeptical about the petitioner’s reading of the text, this outcome is hardly surprising. Indeed, the most notable thing about this case is probably Justice Sonia Sotomayor’s concurrence.

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Petitions of the week

By on Mar 22, 2019 at 10:24 am

This week we highlight petitions pending before the Supreme Court that address whether federal preclusion principles limit the what defenses a defendant can raise when a plaintiff asserts new claims and when a state law might be exempt from the dormant commerce clause.

The petitions of the week are:

18-1086

Issue: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.

18-1097

Issues: (1) Whether a state law is exempt from the dormant commerce clause merely because it does not discriminate against interstate commerce; and (2) whether a state law is exempt from the dormant commerce clause merely because Congress has passed a federal statute saving the law from pre-emption under that statute.

Friday round-up

By on Mar 22, 2019 at 7:11 am

Amy Howe analyzes Wednesday’s oral argument in Flowers v. Mississippi, which asks whether a Mississippi prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution, for this blog, in a post that first appeared at Howe on the Court; she reports that “[a]fter nearly an hour of oral argument that included the first questions by Justice Clarence Thomas since 2016, there seemed to be at least five justices who agree with [death-row inmate Curtis] Flowers.” Another recap of the oral argument comes from Anna Salvatore at High School SCOTUS. The editorial board of The New York Times writes that “the court is once again poised to send a message that racism has no place in the courtroom — this time in the area of jury selection, which remains an especially urgent issue in capital cases.”

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The Supreme Court heard oral argument yesterday in the case of an African-American death-row inmate in Mississippi who was convicted by a jury that included just one African-American juror. The inmate, Curtis Flowers, argues that the jury selection in his case violates the Constitution – especially because the lead prosecutor had a long history of eliminating potential African-American jurors from the jury pool. After nearly an hour of oral argument that included the first questions by Justice Clarence Thomas since 2016, there seemed to be at least five justices who agree with Flowers.

Sheri Lynn Johnson for petitioner (Art Lien)

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Thursday round-up

By on Mar 21, 2019 at 7:12 am

Mark Walsh has a first-hand look at yesterday’s argument in Flowers v. Mississippi, which asks whether a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution, for this blog. At NPR, Nina Totenberg reports that the court “signaled strongly … that it is likely to rule for a death row inmate in Mississippi who was prosecuted six times for the same crime by a prosecutor with a history of racial bias in jury selection.” At The National Law Journal (subscription or registration required), Tony Mauro reports that “[a] key issue in the argument was whether the Supreme Court, in deciding the case before it, could take into consideration only Flowers’ most recent trial or also look at the race-laced record of the previous five trials.” At The Daily Caller, Kevin Daley reports that “[t]he Supreme Court seemed largely united in its sympathy for Flowers and in the feeling that [prosecutor Doug] Evans’s prior conduct was relevant.” Jess Bravin reports for The Wall Street Journal that the “dramatic arguments … concluded with a rare question from Justice Clarence Thomas.”

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This morning the justices issued a per curiam opinion vacating the decision of the lower court in Frank v. Gaos. They had granted review in that case to consider the propriety of so-called “cy pres” settlements – settlements of class actions that distribute all or a part of the monetary relief to public-interest or charitable recipients instead of the named plaintiffs. In this case, for example, the lower courts awarded $8.5 million in monetary relief in a suit brought by plaintiffs alleging that Google’s privacy practices violated the Stored Communications Act. Because the amount of the settlement per plaintiff was quite small (less than a dime), the district court concluded that it was impracticable to distribute funds to the plaintiffs and instead ordered that the funds be paid to several initiatives studying internet privacy and information sharing. Many have challenged cy pres settlements as an inappropriate exercise of the judicial power, reasoning that an award that does not provide redress to the injured parties is not proper, and the justices granted review here to assess that practice.

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With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreement about the rules of tribal treaty interpretation.

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Today will bring an intense hour of argument about race in jury selection in the case of a Mississippi man who has been tried six times by the same prosecutor, which will culminate in a series of short questions by Justice Clarence Thomas, his first during oral argument in three years.

But first, there are a couple of lighter moments.

Justice Thomas questions petitioner’s lawyer in Flowers v. Mississippi (Art Lien)

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Argument transcript

By on Mar 20, 2019 at 2:24 pm

The transcript of this morning’s oral argument in Flowers v. Mississippi is available on the Supreme Court’s website.

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Although Supreme Court justices’ votes are not purely the product of ideological preferences, some of the most important cases the justices decide come down to 5-4 splits along ideological lines. This was especially apparent during the 2017 Supreme Court term. Even though Chief Justice John Roberts was in the conservative camp for many of these split decisions last term, he voted with the court’s liberals in Artis v. District of Columbia and authored the majority opinion, which was joined by the court’s liberal justices, in Carpenter v. U.S. At the end of the term, when Justice Anthony Kennedy left the court, most court-watchers were betting that the court’s ideological center was shifting to the right, leaving Roberts as the conservative median justice.

So it came as a shock when Roberts sided with the court’s liberals in several instances at the start of the 2018 term, suggesting that those past votes with the liberals may been more than mere aberrations. What was the cause of this? Were these instances other anomalies? Is this another case of ideological drift? Or maybe the court’s conservative momentum has pushed it to the right of Roberts’ preferences. Some statistics help to disentangle this ball of yarn.

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