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

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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Editor’s Note: An earlier version of this post ran on January 28, 2019, as an introduction to this blog’s symposium on Kisor v. Wilkie, as well as at Howe on the Court, where it was originally published.

Next week the Supreme Court will hear oral argument in Kisor v. Wilkie, which arises from a dispute over benefits for a Marine who served in the Vietnam War. Although it may sound dry, the case could be one of the most consequential of the term, because the justices will decide whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” The Supreme Court’s ruling could have a significant impact far beyond veterans’ benefits, from the environment to immigration, and it could also shed more light on when and whether the justices are willing to overrule their prior cases.

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John Elwood reviews Monday’s relists.

Exciting times on the relist front! After a couple of light weeks, we had a flurry of action Monday. From last installment’s two new relists, the Supreme Court called for the views of the solicitor general in one case involving what accommodations employers must make for their employees’ religious exercise. The court denied cert in the other case, which involved claims of racial bias in jury deliberations, prompting Justice Sonia Sotomayor to issue an opinion respecting the denial.

The movement was even more impressive among the serial relists. The court denied cert in all four of the cases that raised the question whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 to raise arguments that were foreclosed by binding (but erroneous) circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but that become meritorious in light of a subsequent decision. One was filed by the solicitor general, and it’s somewhat unexpected for the court to reject a government petition on an obviously recurring issue. But the government and another petitioner each claimed that their case was the only good vehicle, and apparently they succeeded in persuading the court that all the vehicles were bad.

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In Nielsen v. Preap, four justices joined Justice Samuel Alito yesterday to adopt an expansive interpretation of a mandatory-immigration-detention statute. In Demore v. Kim, in 2003, the Supreme Court interpreted 8 U.S.C. § 1226(c) to require detention (without bond hearings) for the broad class of potentially removable immigrants identified in the statute. With their decision in Nielsen v. Preap, the Supreme Court further broadened this mandatory-detention provision to cover immigrants who, respondent Mony Preap contended, are not covered by the plain language of the statute.

Justice Alito with opinion in Nielsen v. Preap (Art Lien)

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We live-blogged as the Supreme Court released opinions in two cases: Obduskey v. McCarthy & Holthus LLP and Frank v. Gaos. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law. The transcript of the live blog is available below and at this link.

The justices will hear argument in one case this morning: 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. Amy Howe previewed the case for this blog, in a post that was first published at Howe on the Court. Cecilia Bruni and Brady Plastaras have a preview at Cornell Law School’s Legal Information Institute. At AP, Jeff Amy and Mark Sherman report that “[t]he state, defending the conviction, argues that [the] justices must narrow the focus from [District Attorney Doug] Evans’ broader record to the case at hand.”

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In Monday’s oral argument in Smith v. Berryhill, the justices confronted a split among the courts of appeals as to whether an SSI disability claimant can obtain judicial review of the Social Security Appeals Council’s dismissal of his appeal as untimely under 42 U.S.C. sec. 405(g). Section 405(g) provides that “[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, … may obtain review of such decision by a civil action.”

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This morning’s 6-3 opinion in Air and Liquid Systems Corp. v. DeVries affirms the decision of the lower court holding that the manufacturers of asbestos-dependent equipment used on Navy ships can be held liable to sailors who became ill because of their contact with the asbestos.

Because the case involves liability for conduct at sea, the dispute arises under the “maritime law,” a type of federal common law for which the U.S. Supreme Court is the final authority. In the same way that the New York Court of Appeals is the final authority for the law of negligence in accidents that occur in New York, the U.S. Supreme Court sets the rules for tort liability when the injury occurs at sea.

Justice Kavanaugh with opinion in Air & Liquid Systems Corp. v. DeVries (Art Lien)

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