Thursday round-up

By on May 9, 2019 at 6:56 am

Briefly:

  • At The Daily Caller, Kevin Daley reports on Vice President Mike Pence’s announcement yesterday at a Federalist Society conference that “[t]he Trump administration is searching for an appropriate case in which to ask the Supreme Court to end nationwide injunctions,” noting that some members of the court have signaled “receptiveness to such a challenge”: “Justice Clarence Thomas wrote a short concurring opinion to the 2018 travel ban decision that urges the high court to curtail nationwide injunctions,” and “Justice Neil Gorsuch joined the Thomas opinion.”
  • At Stanford Law School’s Legal Aggregate blog, Robert Gordon suggests that the Supreme Court’s recent decision in Lamps Plus Inc. v. Varela, holding that the Federal Arbitration Act bars interpretation of an arbitration agreement under state law that would allow class arbitration based on general language commonly used in arbitration agreements, “is likely to add a little momentum to the growing political opposition to forced arbitration.”

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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Petitions of the week

By on May 8, 2019 at 9:48 am

This week we highlight petitions pending before the Supreme Court that address the constitutionality of an interrogation conducted by a state-employed Child Protective Services caseworker in certain circumstances and whether, under Section 35 of the Lanham Act, willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a) of the statute.

The petitions of the week are:

18-1233

Issue: Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).

18-1241

Issues: (1) Whether an interrogation that would violate the Fifth Amendment if conducted by a police officer also violates the Fifth Amendment if conducted by a state-employed Child Protective Services caseworker, when the caseworker is required by law to share information obtained in the interrogation with the police and the prosecutor; and (2) whether an interrogation that would violate the Sixth Amendment if conducted by a police officer also violates the Sixth Amendment if conducted by a state-employed CPS caseworker, when the caseworker is required by law to share information obtained in the interrogation with the police and the prosecutor.

Wednesday round-up

By on May 8, 2019 at 6:45 am

At Slate, Mark Joseph Stern maintains that in recent decisions striking down partisan gerrymanders in several states, federal “courts have called SCOTUS’s bluff[:] They’ve shown the justices exactly why partisan gerrymandering infringes on the Constitution, and how it can be remedied.” At the Election Law Blog, Nicholas Stephanopolous argues that “[n]ow that courts have invalidated congressional districts in Maryland, Michigan, North Carolina, Ohio, and Pennsylvania, there are very few remaining plans that could successfully be challenged,” so “[i]f the Court permitted partisan gerrymandering claims to proceed” in this term’s two partisan-gerrymandering cases, Rucho v. Common Cause and Lamone v. Benisek, “the ensuing volume of litigation would … be more like a trickle than a flood.”

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On May 22 at 1 p.m. EST, the American Bar Association will host a CLE webinar entitled “Fees and Fines After Timbs v. Indiana.” More information, including registration instructions, is available here.

 
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Oral arguments for the 2018 term are now complete. In a term in which we have the potential to see heightened polarization on the Supreme Court, oral arguments are affected as well. Last term, all 5-4 decisions made across ideological lines ended in conservative victories. So far this term Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh have all been in the majority in all but one of the court’s 5-4 decisions (In Washington State Department of Licensing v. Cougar Den Inc., Gorsuch joined the more liberal justices in the majority. In addition, in Madison v. Alabama, a 5-3 decision argued before Kavanaugh joined the court, Roberts joined the liberal justices in the majority.).

Oral arguments shed light on the interaction among justices in a unique way. They are the only times when we can see and hear the justices work through case materials and seek answers to a variety of questions. They also are the only time that the parties’ attorneys directly interact with the justices. These multiple layers of interaction yield novel insights into the court’s current dynamics.

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Tuesday round-up

By on May 7, 2019 at 6:42 am

Briefly:

  • In the latest episode of SCOTUStalk (podcast), Tom Goldstein and Kevin Russell join Amy Howe “to discuss the Supreme Court’s announcement that it will weigh in next term on whether federal employment discrimination laws protect LGBT employees.”
  • Kimberly Robinson reports at Bloomberg Law that the Supreme Court is entering what Justice Ruth Bader Ginsburg has called “’flood season’”: “the ‘well-known crunch’ as the end of the U.S. Supreme Court term approaches,” with “40 of the court’s expected 69 opinions … still outstanding.”
  • At The National Law Journal (subscription or registration required), Tony Mauro reports that “[t]he case of a Colorado 4-year-old girl who was strip searched by a government social worker,” I.B. v. Woodard, “could prompt the U.S. Supreme Court to take a new look at its ‘qualified immunity’ doctrine that lets officials off the hook in some circumstances when they violate an individual’s civil rights.”
  • A Federalist Society video captures a recent panel discussion of “the impact … on takings law” of Love Terminal Partners v. United States, a “2018 Federal Circuit Court ruling [now being appealed to the Supreme Court that] rejected compensation to the plaintiff in a case in which the government took through eminent domain a privately owned airline terminal and physically demolished it.”
  • At Empirical SCOTUS, Adam Feldman analyzes the interaction among justices and between justices and attorneys during this term’s oral arguments.

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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Relist Watch

By on May 6, 2019 at 3:05 pm

John Elwood reviews Monday’s relists.

With nothing happening in the news, I feel like there’s not much to work with for the traditional flimsy topical introduction. So let’s just get started. Only two new relists this week.

Both Myers v. United States, 18-6859, and Santos v. United States, 18-7096, involve fairly arcane issues about what crimes qualify as predicate offenses under the much-litigated Armed Career Criminal Act – specifically, whether certain state crimes are “divisible,” meaning that even if some subsections wouldn’t qualify as ACCA predicates, others would. What makes these cases noteworthy is how the government handled them. The government initially waived its right to file a response in both, in effect telling the Supreme Court that the cases were so meritless that they didn’t warrant the government’s time. The court nonetheless called for a response in both. When government lawyers dug in to the cases, they had a distinctly different impression than upon first view, and in both cases told the court to grant the petition, vacate the judgment below and remand. In Santos, the government filed a short brief saying that the conviction in question “does not qualify as a violent felony under the [ACCA]” (at least not on the theory the government used below). And in Myers, the government concluded that the court of appeals applied the analysis required by an earlier ACCA case, Mathis v. United States, “in a manner that is inconsistent with this Court’s decision.”

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In this week’s episode of SCOTUStalk, Tom Goldstein and Kevin Russell join Amy Howe of Howe on the Court to discuss the Supreme Court’s announcement that it will weigh in next term on whether federal employment discrimination laws protect LGBT employees in Bostock v. Clayton County, GeorgiaAltitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

Monday round-up

By on May 6, 2019 at 6:44 am

Briefly:

  • Richard Wolf reports for USA Today on litigation in the Supreme Court over Trump administration initiatives, noting that since Justice Brett Kavanaugh’s “high-wire confirmation last fall, the justices have sought a lower profile, although not always with success.”
  • At CNN, Joan Biskupic writes that several “formal ethics grievances filed against Kavanaugh” “have been appealed to a conduct committee of the US Judicial Conference, the top policy-making arm of the third branch.”
  • At AP, Jessica Gresko reports that after Justice Clarence Thomas’ 28-year stint on the Supreme Court, “[i]t may finally be his moment”: He is “the longest-serving member of a court that has recently gotten more conservative, putting him in a unique and potentially powerful position, and he’s said he doesn’t plan on retiring anytime soon.”
  • Jess Bravin reports for The Wall Street Journal that “[w]hile a consensus appears to be forming among lower courts that extreme partisanship, like racial gerrymanders, can be remedied through litigation, the Supreme Court’s conservative majority appeared far from convinced during March arguments over congressional maps in Maryland and North Carolina drawn by Democrats and Republicans, respectively, to disadvantage the other party.”

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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This week at the court

By on May 5, 2019 at 12:00 pm

On Thursday, the justices met for their May 9 conference; John Elwood’s “Relist Watch” compiles the petitions relisted for this conference.

 
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