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We’re hosting a symposium on the Roberts court and the First Amendment’s religion clauses. In a series of six essays, scholars and commentators will analyze major decisions from the 2019-20 term and look to the future of the court’s religion jurisprudence. Click to follow along.

This week we highlight cert petitions pending before the Supreme Court that ask the court to assess the constitutionality of a Mississippi abortion law, a Texas liquor law and a federal law governing the appointment of patent judges. In Dobbs v. Jackson Women’s Health Organization, Mississippi asks the court to weigh in on the state’s Gestational Age Act, which bans abortions after 15 weeks of pregnancy except in cases of medical emergencies or severe fetal abnormalities. The state wants the court to take the case in order to “clarify whether abortion prohibitions before viability are always unconstitutional.” In Wal-Mart Stores v. Texas Alcoholic Beverage Commission, Wal-Mart asks the court to consider whether a Texas law that prohibits publicly traded corporations from obtaining a permit to operate a liquor store violates the Constitution’s commerce clause by discriminating against out-of-state businesses. And in United States v. Arthrex Inc., the federal government wants the court to decide whether administrative patent judges of the U.S. Patent and Trademark Office are “principal officers” who must be appointed by the president with the Senate’s advice and consent.

These and other petitions of the week are below the jump:

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On Tuesday, Aug. 4, at 1 p.m. EDT, the ABA Criminal Justice Section will host a virtual discussion of major criminal cases decided during the 2019-20 Supreme Court term – on issues from presidential subpoenas and jury unanimity to the insanity defense and cross-border shootings – as well as cases granted for next term. The discussion will be led by Judge Benita Pearson of the U.S. District Court for the Northern District of Ohio, Daniel Scott Harawa of Washington University in St. Louis Law and Carla Laroche of Florida State Law, and will be moderated by UC Hastings Law’s Rory Little. Registration is free.

Click here for more info and to register.

 
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Thursday round-up

By on Jul 30, 2020 at 8:04 am

Justice Ruth Bader Ginsburg underwent a minimally invasive medical procedure, and the Trump administration asked the Supreme Court to allow it to continue using federal funds to build its border wall. Those were the two main stories from the court on Wednesday, and Amy Howe has the details on both of them. Ginsburg was back in the hospital for a common, non-surgical procedure to revise a bile duct stent that was originally placed last year, and she expects to be released from the hospital by the end of the week, Howe reports in a story for SCOTUSblog that was first published at Howe on the Court. And in the latest filing in the legal dispute over President Donald Trump’s wall on the U.S.-Mexico border, the administration asked the justices not to undo a previous order that has allowed the government to continue building the wall while a legal challenge makes its way up to the high court.

CNN’s Joan Biskupic also wraps up her exclusive and much-discussed four-part series on the inner workings of the Supreme Court during its contentious 2019-20 term. In the final installment of the series, Biskupic reports that the court’s decisions in a pair of cases involving Trump’s financial records – Trump v. Mazars and Trump v. Vance – were the product of two months of tense negotiations during which Chief Justice John Roberts cobbled together a seven-justice coalition to issue a pair of compromise rulings. Continue reading »

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Justice Ruth Bader Ginsburg underwent a “minimally invasive non-surgical procedure” on Wednesday at Memorial Sloan Kettering Cancer Center in New York to “revise a bile duct stent that was originally placed at Sloan Kettering in August 2019,” the Supreme Court’s Public Information Office announced. Ginsburg’s doctors, the statement indicated, say that such procedures “are common occurrences”; this one, which was “performed using endoscopy and medical imaging guidance, was done to minimize the risk of future infection.” The 87-year-old Ginsburg “is resting comfortably and expects to be released from the hospital by the end of the week,” the statement concluded. Continue reading »

 
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One week after opponents of President Donald Trump’s border wall asked the justices to order a temporary halt to construction, the Trump administration on Wednesday told the Supreme Court that the government should be allowed to continue to spend federal funds on construction while a legal challenge continues. Last week’s filing by the Sierra Club and the Southern Borders Communities Coalition, the Trump administration wrote, doesn’t make any new arguments that would justifying lifting the Supreme Court’s year-old stay of a federal trial court’s order, and its “old arguments remain equally flawed.” Continue reading »

On Tuesday, Aug. 4, from 12-1:30 p.m. EDT, ADL will host a virtual discussion of the most important cases of the 2019-20 Supreme Court term, on issues including the separation of church and state, immigration and Title VII employment discrimination. The panel will feature Erwin Chemerinsky of Berkeley Law, Paul Clement of Kirkland & Ellis, Frederick Lawrence of Georgetown Law and Dahlia Lithwick of Slate. The program, which offers 1.5 hours of CLE credit, will be held in partnership with the National Constitution Center. General registration is free, and CLE registration is $60 ($55 for NCC members).

Click here for more info and to register.

 
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Wednesday round-up

By on Jul 29, 2020 at 7:49 am

Briefly:

  • CNN’s Joan Biskupic continues her series on the Supreme Court’s internal workings during its 2019-20 term. In her latest installment, Biskupic reports that Justice Brett Kavanaugh “urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for President Donald Trump’s financial records.”
  • At Talking Points Memo, Ciara Torres-Spelliscy argues that the court’s rulings on subpoenas for Trump’s financial records – Trump v. Mazars and Trump v. Vance – may have an “unnoticed winner.” The rulings, Torres-Spelliscy writes, may help Summer Zervos, who is suing Trump for defamation.
  • In the National Review, Josh Blackman makes the case that Justice Neil Gorsuch and Kavanaugh “have separated themselves” from the president who appointed them but, in doing so, have “carefully guarded presidential authority for decades to come.”
  • Westlaw Today’s Meera Gajjar reports on tribal plaintiffs’ assertion that the recent decision in McGirt v. Oklahoma works against federal defendants’ argument that the president had the power to revoke national monument status.

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!

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Abbe R. Gluck is a professor of law and faculty director of the Solomon Center for Health Law and Policy at Yale Law School.

What is the Supreme Court to do with the rest of a statute when it finds one provision unconstitutional? That is the question a long-out-of-the-limelight doctrine — the “severability doctrine” — tries to answer. Should the court hold only the one provision invalid and leave the rest of the statute intact? Should it invalidate provisions especially linked to the offending one as well? Or should it strike down the entire statute?

Despite its relative obscurity, the doctrine is consequential. On the one hand, invalidating an entire statute for one faulty piece is the most invasive of remedies; on the other, the court is wary of altering Congress’ laws by excising parts of them. The severability doctrine takes a side: It presumes Congress wants its statutes saved. In the words of Chief Justice John Roberts this term in Seila Law v. Consumer Financial Protection Bureau, it’s “a scalpel rather than a bulldozer.”

The court used the doctrine to save two statutes this term after finding provisions of each unconstitutional: It saved the CFPB provisions of the Dodd Frank Act in Seila Law, and it saved the federal anti-robocall provisions of the Telephone Consumer Protection Act in Barr v. American Association of Political Consultants. Those two cases may be preludes to a bigger severability battle next term, as the court may have to apply the doctrine to decide the fate of the Affordable Care Act. Continue reading »

Tuesday round-up

By on Jul 28, 2020 at 8:20 am

CNN’s Joan Biskupic has the scoop of the day (and perhaps the term) with Part 1 and Part 2 of a series that provides “exclusive new details about how the court handled its pivotal term that dealt with LGBTQ rights, abortion and investigating President Donald Trump.” The first two parts, based largely on interviews with unnamed sources, contain several revelations about Chief Justice John Roberts’ behind-the-scenes maneuvering as well as the complex internal wrangling that led to the Supreme Court’s 6-3 decisions finding that Title VII protects gay and transgender employees. Biskupic reports, for instance, that Roberts signaled during internal deliberations that he would be unlikely to join with the other conservative justices to overturn gun control regulations, leading the court to deny several petitions on Second Amendment rights. She also reports that, shortly after Justice Neil Gorsuch circulated a first draft of his opinion in the Title VII cases, the six-justice majority quickly consolidated, a sign of the “collaboration underway and an indication that the majority that had locked in soon after oral arguments was holding.” Continue reading »

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Casetext and SCOTUSblog hosted a webinar on July 23 to debrief the blockbuster 2019-20 Supreme Court term. SCOTUSblog Publisher and Co-Founder Tom Goldstein and Goldstein & Russell Partner Sarah Harrington led the discussion, moderated by Casetext Chief Operating Officer Laura Safdie. The event was co-sponsored by the American Constitution Society and the Federalist Society.

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