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The Supreme Court will release orders from the February 15 conference on Tuesday, February 19, at 9:30 a.m. There is a possibility of opinions on Wednesday, February 20, at 10:00 a.m.

Justin Levitt is a professor at Loyola Law School, Los Angeles; he runs the website “All About Redistricting.”

Partisan gerrymandering is back. There are two cases before the Supreme Court this term: a Democratic gerrymander in Maryland and a Republican gerrymander in North Carolina. The cases are different – and though neither is perfect, the basic problem of partisan political entrenchment is unlikely to be presented more cleanly. The evidentiary record in each case is firmly turned up to 11.

Last term, the Supreme Court also had two partisan-gerrymandering cases. And though the court essentially punted, its approach offers some insights relevant to the pending sequels.

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We thought it’d be a quiet week, but the Supreme Court had other plans. Amy Howe joins to catch us up on the news. We also get a taste of American University law professor Robert Tsai’s new book, “Practical Equality: Forging Justice in a Divided Nation.”

Monday round-up

By on Feb 11, 2019 at 7:01 am

Amy Howe covers last week’s Supreme Court news, including action “in cases asking the justices to intervene in cases involving the death penalty and abortion,” in a podcast at Howe on the Court. At First Mondays (podcast), Howe joins the hosts to expand on those topics.

At The Daily Signal, Elizabeth Slattery observes that after last Thursday’s order in in June Medical Services v. Gee, in which a divided court blocked a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals from going into effect pending appeal, “[i]t’s highly likely that abortion will loom large at the Supreme Court next term.” Greg Stohr reports at Bloomberg that “[b]ehind the raw vote total were nuanced positions staked out by Chief Justice John Roberts and Justice Brett Kavanaugh, the two jurists who probably will determine the pace and ultimate destination of the court’s ideological shift.” At The Economist’s Democracy in America blog, Steven Mazie writes that “[w]hen it comes to abortion rights, the five-justice conservative bloc seems split into three camps.” At Law.com, Tony Mauro observes that “[e]ven though Roberts signed on to a divided 5-4 opinion, he may have done so to defuse the abortion issue for the time being and make the outcome seem less driven by ideology or policy preferences.” Another look at Roberts’ “competing impulses” comes from Adam Liptak in The New York Times. For The Washington Post, Robert Barnes suggests that the orders in the abortion case and in a 5-4 decision to allow the execution of a Muslim inmate in Alabama who had challenged the state’s refusal to allow an imam to be present at his execution “provided new insight into the alliances on the reconstituted Supreme Court.” Commentary comes from Charles Pierce at Esquire.

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This week at the court

By on Feb 10, 2019 at 12:00 pm

On Friday, the justices met for their February 15 conference and agreed to hear oral argument in Department of Commerce v. New York during the second week of the April sitting.

The calendar for the February sitting, which will begin on Tuesday, February 19, is available on the Supreme Court’s website.


Petitions of the week

By on Feb 8, 2019 at 12:45 pm

This week we highlight petitions pending before the Supreme Court that address, among other things, the scrutiny applicable to a government policy of pretrial detainment for misdemeanor and traffic-offense arrestees based solely on their inability to pay a predetermined bail amount, the requirements for a patent to satisfy Section 101 of the Patent Act, the expenses encompassed in the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145, and whether the use of an acoustic device can constitute constitutionally excessive force.

The petitions of the week are:


Issue: Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation.


Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in finding a potential constitutional violation for excessive force and denying the officers qualified immunity, particularly given that no case had addressed whether and when sound constitutes force, much less held that the use of an acoustic device crosses the line into constitutionally excessive force under circumstances resembling those here or, indeed, under any circumstances at all.


Issues: (1) Whether heightened scrutiny under the 14th Amendment applies to a government policy that keeps misdemeanor and traffic-offense arrestees in jail pretrial solely because they are poor; and (2) whether the government can keep misdemeanor and traffic-offense arrestees in jail for up to 48 hours after arrest solely because they are poor when it has offered no reason for doing so.


Issue: Whether patents that claim a method of medically treating a patient automatically satisfy Section 101 of the Patent Act, even if they apply a natural law using only routine and conventional steps.


Tyler Green is the solicitor general of Utah.

My last contribution to a SCOTUSblog symposium on political gerrymandering used homemade bad theater to depict how a Supreme Court decision setting a standard for political-gerrymandering claims would change life for state legislators and their attorneys. The court dodged this issue in Gill v. Whitford. But the issue has returned this term in Rucho v. Common Cause and Lamone v. Benisek. These events evoke a seasonally appropriate, classic film — Groundhog Day — as a metaphor for how setting a political-gerrymandering standard would change life for the court itself.

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Friday round-up

By on Feb 8, 2019 at 7:04 am

Last night the Supreme Court, by a vote of 5-4, with Chief Justice John Roberts joining the more liberal justices, blocked a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals from going into effect pending appeal. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For The Wall Street Journal, Brent Kendall and Jess Bravin report that “[b]y staying the effect of the lower-court ruling, the justices likely committed themselves to giving a full review of the Louisiana case during their next term, which begins in October.” Adam Liptak reports for The New York Times that “[o]nly Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.” At his eponymous blog, Michael Dorf argues that “[n]o justice who was committed to overruling the Court’s abortion jurisprudence has ever voted to block an abortion law from going into effect,” so Roberts’ decision to vote in favor of the stay suggests “that he is at least in a go-slow mode.”

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In June 2016, an eight-member Supreme Court struck down a Texas law that required doctors who perform abortions to have the authority to admit patients at a local hospital. The makeup of the court has changed significantly since then: In 2017, Justice Neil Gorsuch was confirmed to replace the late Justice Antonin Scalia, who died a few weeks before the Texas case was argued, and Justice Anthony Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh. But although the court by most measures has become more conservative, the justices today granted a request from abortion providers to block a similar Louisiana law from going into effect while the providers appeal a ruling from the U.S. Court of Appeals for the 5th Circuit, in a dispute that some court-watchers regarded as a bellwether for the court’s possible direction in future abortion cases.

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A divided Supreme Court cleared the way for Alabama to execute a Muslim inmate after denying his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber.

By a vote of 5-4, the justices lifted a stay of execution imposed yesterday by the U.S. Court of Appeals for the 11th Circuit. The Atlanta-based court had put the execution of Domineque Ray, who was convicted of raping and murdering 15-year-old Tiffany Harville in 1995, on hold, reasoning that the prison’s policy of excluding the imam from the execution chamber while allowing a Christian chaplain likely violates the Constitution’s establishment clause, which bars the government from favoring one religion over another. But the justices reversed that ruling today, explaining that Ray had waited too long to challenge the policy: Although today’s execution date had been set back in early November, Ray didn’t go to court until January 28, 2019.

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Guy-Uriel E. Charles is the Bennett Boskey Visiting Professor of Law at Harvard Law School and Edward and Ellen Schwarzman Professor of Law at Duke Law School. Luis E. Fuentes-Rohwer is Professor of Law and Harry T. Ice Faculty Fellow at Indiana University Bloomington Maurer School of Law.

In Lamone v. Benisek, a three-judge federal district court in Maryland concluded that Maryland Democrats intentionally moved 66,000 Republican voters out of Maryland’s Sixth Congressional District in order to turn a district that would more or less reliably elect a Republican member of Congress into one that would elect a Democrat. That court agreed with the plaintiffs, Republican voters who lived in the district, that the state intentionally diluted their votes. In Rucho v. Common Cause, a three-judge federal district court in North Carolina concluded that Republicans intentionally packed and cracked Democrats in constructing North Carolina’s 2016 congressional redistricting plan. That court agreed with the plaintiffs, Democrats who resided in each of the state’s 13 congressional districts, that the North Carolina plan violated the U. S. Constitution by intentionally diluting their votes.

If we are lucky, the Supreme Court will use Benisek and Rucho to decide whether political gerrymandering claims are justiciable — whether the federal courts can serve as a check on the political process and safeguard a baseline conception of the effectiveness of the right to vote — and not duck the issue as it did last term in Gill v. Whitford. If we’re really lucky, the court will decide the cases in favor of justiciability. And if the stars align just right, the court will also articulate a framework for resolving political-gerrymandering claims.

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