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This week, we are hosting a symposium before oral argument on December 2 in New York State Rifle & Pistol Association v. City of New York. Click here to read the contributions.

Relist Watch

By on Nov 14, 2019 at 11:09 am

John Elwood hastily reviews Tuesday’s relists.

It’s a perfect storm: A week already shortened by Veterans Day made shorter still by an unprecedented gathering of highfunctioning introverts. So to make sure we have this out well enough ahead of possible Friday grants while still attending the events, we’ll keep this short too.

Six new relists this week. But I want to flag just two related cases for you: Competitive Enterprise Institute v. Mann, 18-1477, and National Review, Inc. v. Mann, 18-1451. Because there aren’t enough highstakes cases before the Supreme Court this term, the justices are now considering whether to take a case involving climate change — and free speech. As I discovered simply trying to track down replacements for broken hyperlinks in the decision under review, opinions in this area range from a quaintly old-fashioned “delete your account!” to statements so profane I need administrative privileges just to view them on a firm-owned computer. So the odds are against my describing this case without inspiring rage. But here goes. Continue reading »

Thursday round-up

By on Nov 14, 2019 at 6:53 am

Yesterday the court heard argument in Comcast v. National Association of African American-Owned Media, in which the justices considered whether, in a claim under a federal statute that prohibits race discrimination in contracting, a plaintiff is required to show that the defendant’s action would not have been taken but for the alleged discrimination. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[a] cautious Supreme Court … seemed to be looking for a narrow way to rule in a racial discrimination case against Comcast, the nation’s largest cable company, by a black entrepreneur who contends his race played a role in the company’s decision not to carry programming from his network.” Richard Wolf reports for USA Today that the court “appeared likely … to let [the] claim … go forward, even though it might be difficult to prove,” [b]ut both liberal and conservative justices indicated that while there may be enough evidence of racial bias for now, [the plaintiffs] eventually would have to prove that race was the deciding factor for Comcast.”

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The Supreme Court last night denied both applications (here and here) to block the execution of Ray Jefferson Cromartie, who was sentenced to death for the 1994 murder of Richard Slysz. Georgia was set to execute Cromartie by lethal injection at 7:00 p.m. EST yesterday, but the state was delayed over three hours while his final appeals were before the justices. According to reports, Cromartie was executed at 10:59 p.m.

I suggested in my preview of Ritzen Group v. Jackson Masonry that the argument might tell us a great deal about how the Supreme Court will approach this technical bankruptcy matter. And for once I think I was right, as the argument suggested a considerable consensus on the bench about how to address the issues in this case. Ritzen Group is not one of the most important cases on the court’s docket this fall. Indeed, I doubt informed bankruptcy professionals would even place it anywhere on a list of pressing concerns in bankruptcy practice. Rather, this is a case the justices are hearing solely because they are persuaded that the lower courts are in conflict. Continue reading »

This morning the Supreme Court heard oral argument in a lawsuit filed by Entertainment Studios Network, a media company owned by African American entrepreneur and entertainer Byron Allen, against cable giant Comcast. ESN and the National Association of African American-Owned Media, an organization with which ESN is affiliated, argue that Comcast violated 42 U.S.C. Section 1981, a federal law barring racial discrimination in contracts, when it declined to carry channels that ESN produced. The question before the justices centered on what ESN is required to allege for its lawsuit to go forward: Is it enough, as the U.S. Court of Appeals for the 9th Circuit ruled, that the complaint contends that race was a “motivating factor” behind the defendant’s decision, or (as Comcast maintains) must the complaint instead assert that the decision would have been different were it not for the plaintiff’s race? After an hour of oral argument, the justices seemed likely to strike down the 9th Circuit’s ruling, but it was less clear what standard they would select to replace it. It also seemed possible that ESN’s case might survive and move forward, at least for now. Continue reading »

In a 2015 article for The Washington Post reviewing Melvin Urofsky’s book, “Dissent and the Supreme Court,” David Cole wrote, “What determines a great dissent … is not necessarily the power of the argument but the shifting tides of history. … History, not rhetoric or cogency, determines whether a dissent wins out in the long run. Yet by articulating a compelling alternative legal vision, a persuasive dissent can contribute to the arc of historical change.” Not only dissents, but all separate Supreme Court opinions have the potential to become law in later iterations of the court’s business.

Yet not all Supreme Court scholars view separate opinions positively. In a recent article, Professor Suzanna Sherry proposed not only eliminating dissents and separate opinions altogether, but also ending the practice of justices’ signing their names to opinions in order to do away with, or at least minimize, the celebrity status bestowed upon Supreme Court justices. In the space between praise for and criticism of separate-opinion writing, this analysis looks at how majority opinions have utilized separate opinions to generate and refine arguments that have directed the trajectory of the law over the past few terms. Continue reading »

 
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Wednesday round-up

By on Nov 13, 2019 at 6:42 am

This morning the Supreme Court wraps up the November session with two more oral arguments. The first case today is Comcast v. National Association of African American-Owned Media, in which the court will decide whether, in a  claim under a federal statute that prohibits race discrimination in contracting, a plaintiff is required to show that the defendant’s action would not have been taken but for the alleged discrimination. Amy Howe had this blog’s argument preview, which first appeared at Howe on the Court. Thomas Shannan and David Relihan preview the case at Cornell Law School’s Legal Information Institute.

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This morning the Supreme Court issued more orders from last week’s private conference. After granting one new case last Friday, the justices did not add any new cases to their merits docket for the term, nor did they make any new requests for the views of the federal government.

The justices turned down a request by Remington Arms Co., a gun manufacturer, to block a lawsuit brought against the company by the families of the victims of the 2012 Sandy Hook shootings, in which 20 first graders and six school employees were killed. The plaintiffs allege that Remington, which makes the assault rifle used in the attack, violated Connecticut unfair-trade-practices laws by selling and marketing the rifle to civilians.

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For the second time in less than three years, the family of Sergio Hernandez was at the Supreme Court today for oral argument. In 2010, Sergio – who was then 15 years old – was on the Mexican side of the U.S.-Mexico border when he was shot and killed by a U.S. Border Patrol agent, Jesus Mesa. The Hernandez family filed a lawsuit against Mesa in federal court in Texas, arguing that Mesa had used excessive force against Sergio, which violated Sergio’s rights under the Fourth and Fifth Amendments to the U.S. Constitution. The dispute now before the Supreme Court centers on whether the family’s lawsuit can go forward. After an hour of oral argument this morning, the family seemed to face an uphill battle, with the justices closely divided.

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Another month, another blockbuster argument in the Supreme Court. Last month it was whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and transgender status. Today, it is the Trump administration’s efforts to rescind the Deferred Action for Childhood Arrivals program, known as DACA.

We may yet have a similar blockbuster for each of the remaining five sittings of the court this term.

Senator Durbin and Janet Napolitano in courtroom for DACA argument (Art Lien)

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