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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.

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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Kaylan L. Phillips serves as litigation counsel for the Public Interest Legal Foundation, a 501(c)(3) public interest law firm dedicated to election integrity.

For more than 30 years, the Supreme Court has struggled to articulate a standard for evaluating partisan-gerrymandering claims. The reason is simple: There is no workable standard. Redistricting is a quintessential lawmaking function, one that the Constitution reserves to the states. Court intervention should be reserved for the most egregious of violations, not political disagreements.

Yet challengers keep knocking at courthouse doors asking for a standard. These challenges tie up the lower courts in extensive and expensive fact-finding and litigation, which predictably begins anew following each round of redistricting.

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Thursday round-up

By on Feb 7, 2019 at 7:03 am

Briefly:

  • At Law.com, Tony Mauro reports that Sen. Sheldon Whitehouse, D-R.I., sent a letter last month to “Chief Justice John Roberts Jr. and Court Clerk Scott Harris, decrying ‘the court’s practice of routinely accepting amicus curiae briefs from special interest groups that fail to disclose their donors.’”
  • At Justia’s Verdict blog, Samuel Estreicher writes that Kisor v. Wilkie, in which the justices will reconsider precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, “presents an opportunity to make clear that Chevron-type deference is inappropriate and that at most Skidmore respect may be appropriate,” and he cautions that “[t]he Court should do no more; it certainly should not raise questions generally about Chevron deference that rests on a congressional delegation of authority not present in the Auer context.
  • At Slate, Dahlia Lithwick looks at June Medical Services v. Gee, in which the court has been asked to grant an emergency stay from an appeals court ruling upholding “a 2014 law enacted in Louisiana requiring any abortion provider to get admitting privileges at a hospital that’s within 30 miles of the clinic where they work,” remarking that “[t]he real story here is how the appeals court managed to distinguish Louisiana’s law from the virtually identical rule in Texas, the one struck down only two years earlier.”
  • In an op-ed for The Washington Post, Robert Tembekjian explains why the Supreme Court should adopt an ethics code.

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 in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Daniel Tokaji is Associate Dean for Faculty and Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Michael E. Moritz College of Law.

No one said this would be easy. For decades, critics of partisan gerrymandering have been knocking on the U.S. Supreme Court’s door, seeking a ruling that extreme gerrymanders violate the U.S. Constitution. Even as the problem has worsened, the court has refused to open that door – though it hasn’t locked it shut either. Most recently, the Supreme Court denied relief last term in cases out of Wisconsin and Maryland. In the Wisconsin case (Gill v. Whitford), the court unanimously concluded that the plaintiffs had failed to demonstrate their standing to assert that a Republican-drawn state legislative redistricting plan violated their right to vote. In the Maryland case (Benisek v. Lamone), the court affirmed the denial of a preliminary injunction against a congressional redistricting plan drawn by Democrats.

Two partisan-gerrymandering cases are before the Supreme Court again this term. On March 26, the justices will hear arguments in challenges to North Carolina’s congressional redistricting plan (Rucho v. Common Cause) and Maryland’s congressional redistricting plan, which is back before the court (Lamone v. Benisek). Three-judge district courts granted relief in both cases. So there is hope. But after last term’s rulings and the retirement of Justice Anthony Kennedy – long seen as a potential fifth vote to strike down partisan gerrymanders – there are reasons to doubt the plaintiffs’ chances in the Supreme Court.

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Wednesday round-up

By on Feb 6, 2019 at 7:00 am

Briefly:

  • At USA Today, Richard Wolf reports that “[a]mong the issues that deeply divide the Supreme Court[,] … one of the most personal is whether to take their reserved front-row seats for the president’s annual State of the Union address,” and that “[f]our of nine justices attended President Trump’s delayed address Tuesday night, led as usual by Chief Justice John Roberts, who has lamented the partisan nature of the event.”
  • At the Cato Institute’s Cato at Liberty blog, William Yeatman is skeptical of claims that a victory for the challengers in Kisor v. Wilkie, in which the justices will reconsider precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, “would rock the foundations of administrative law.”
  • At Rewire.News’ Boom! Lawyered podcast, Jessica Mason Pieklo and Imani Gandy note that “[t]he Supreme Court issued a stay against an anti-choice law in Louisiana—but only for a few days, perhaps,” and they “try to make sense of this puzzling move by the Court and what might happen next.”
  • At Huffpost, Paul Blumenthal writes that some progressives “are turning to a new strategy to keep the [Supreme Court] from damaging their policy priorities: presenting arguments to its conservative justices in a language they understand.”
  • At Law360 (subscription required), Alan Ellis and others weigh in on United States v. Haymond, a constitutional challenge to a statute that required a judge to reimprison a sex offender found to have violated the conditions of his supervised release by possessing child pornography, noting that a victory for the defendant would “will have far-reaching implications not just for sex offenders, but for the tens of thousands of individuals currently on supervised release[,] and perhaps even add another nail in the coffin of judicial sentencing based on uncharged conduct not found beyond a reasonable doubt.”

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 in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Derek Muller is an associate professor of law at the Pepperdine University School of Law.

“In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.” So wrote Justice Felix Frankfurter in his dissenting opinion in Baker v. Carr in 1962.

It was, of course, a dissent. A majority of the Supreme Court in short order reorganized state legislatures according to its own understanding of fair representation — that population should be roughly equal in each legislative district. And the majority’s basis for doing so, Frankfurter’s dissent chided, “ultimately rests on sustained public confidence in [the Court’s] moral sanction.”

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On February 12 at 1 p.m. EST, the Washington Legal Foundation will host a media briefing and webinar entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2018 at Midpoint.” Speakers include John Elwood, Michael Kimberly and Elizabeth Papez. More information, including instructions on how to RSVP, is available here.

 
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Tuesday round-up

By on Feb 5, 2019 at 7:20 am

Briefly:

  • Robert Barnes reports for The Washington Post that “Justice Ruth Bader Ginsburg on Monday night made her first public appearance since undergoing cancer surgery in December, attending a celebration of her life presented in song.”
  • For The Detroit News, Jonathan Oosting reports that yesterday Justice Sonia Sotomayor denied a request to delay a trial in Michigan, scheduled to begin today, in a case involving claims “that maps approved by the Republican-led Legislature in 2011 intentionally diluted the power of Democratic voters to benefit GOP politicians.”
  • At SCOTUS OA, Tonja Jacobi and Matthew Sag analyze the “clarifying” reargument in Knick v. Township of Scott, Pennsylvania, in which the justices have been asked to reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution.
  • At Greenwire (subscription required), Ellen Gilmer reports that in Kisor v. Wilkie, “[e]lectric utilities, energy producers and industry groups are urging the Supreme Court to strike down an agency deference rule they believe gives the executive branch too much power.”
  • At The National Law Review, Lawrence Weinstein and Jeffrey Warshafsky look at PDR Network, LLC v. Carlton & Harris Chiropractic Inc., in which the justices will “consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act.”

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Every 10 years, the federal government conducts a census. The states then use the data from the census to draw new maps for their state legislatures and federal congressional districts. The maps often take politics into account – for example, to protect incumbents. But in March, the Supreme Court will hear oral argument on whether state officials can go too far, so that they actually violate the Constitution, when they draw maps that favor one political party at another’s expense. And with the retirement last year of Justice Anthony Kennedy, the justices could be poised to rule that this issue – known as partisan gerrymandering – is one that the courts should leave to politicians and the political process.

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Dan Epps and Leah Litman were in San Francisco this past weekend for a great symposium sponsored by the Hastings Law Journal called “The Jurisprudence of Justice Anthony M. Kennedy—Four Decades of Influence.” While he was in the City by the Bay, Epps managed to record a fun conversation with Judge Marsha Berzon of the U.S. Court of the Appeals for the 9th Circuit and Professors Rory Little and Zach Price of UC-Hastings College of the Law. They offer their takes on Kennedy’s legacy, talk through some interesting clerkship anecdotes, and discuss Price’s fascinating symposium article about “symmetric constitutionalism.”

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