Rodney Smolla is dean and professor of law at Widener University Delaware Law School.

The Supreme Court should strike down the Minnesota statute at issue in Minnesota Voters Alliance v. Mansky. The law provides, “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The sweep of the statute is breathtaking, encompassing virtually all political messages. It precludes not only direct advocacy of a candidate’s election, but even the communication of an ideological message, such as “Please I.D. Me” buttons, or promotion of the identity of groups with recognizable political views, such as the Tea Party or

The U.S. Court of Appeals for the 8th Circuit upheld the statute in a short and mechanistic analysis. A polling place, the court reasoned, is a “nonpublic forum.” The First Amendment standard applicable to the regulation of speech in a nonpublic forum, the court held, requires merely that the law be viewpoint neutral and reasonable in light of the purpose the forum serves. The court held that the Minnesota law was viewpoint neutral. The law would equally ban the wearing of “Vote for Trump” and “Vote for Oprah,” as it would equally bar messages promoting the “Tea Party,” the “Green Party,” the “NRA” or the “NAACP.”  Ruling that the state has a legitimate interest in maintaining “peace, order and decorum” in the polling place, the court upheld the law.

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Tuesday round-up

By on Jan 23, 2018 at 7:33 am

The Supreme Court released its rulings in three cases yesterday, placating court-watchers frustrated by the slow pace of opinions this term. Mark Walsh has a “view” from the courtroom for this blog. Yesterday’s first opinion was in National Association of Manufacturers v. Department of Defense, in which a unanimous court held that challenges to the “waters of the United States” rule must be filed in federal district courts. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter analyzes the opinion for this blog. Subscript has a graphic explainer. At E&E News, Amanda Reilly and Ariel Wittenberg note that “[t]he decision is a loss for the federal government, which had argued in court under both the Obama and Trump administrations that the Clean Water Act should be interpreted functionally, rather than literally,” and “[i]t also complicates the Trump administration’s efforts to repeal and replace the rule.” Commentary comes from NFIB, which calls it “a good day for small business.”

In Artis v. District of Columbia, the court ruled 5-4, over a dissent by Justice Neil Gorsuch, that the tolling provisions of the federal supplemental jurisdiction statute stop the clock on the state limitations period while the state claims are pending in federal court. At PrawfsBlawg, Howard Wasserman notes that “Gorsuch’s dissent emphasized a concern that arose during arguments–that state courts may now have to deal with claims that were untimely by many years,” but explains that “[s]uch timing should not be a significant concern in the mine run of cases.”

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Petition of the day

By on Jan 22, 2018 at 8:53 pm

The petition of the day is:


Issue: Whether the Indian Child Welfare Act defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The federal government’s attempts to define the statutory phrase “waters of the United States” — and in turn, to establish the geographic reach of the federal government’s regulatory authority under the Clean Water Act — have repeatedly spurred litigation over the years. Most recently, when the Obama administration issued the “Clean Water Rule,” also known as the Waters of the United States Rule, over 100 parties across the country sued to challenge it. In today’s opinion in National Association of Manufacturers v. Department of Defense, written by Justice Sonia Sotomayor, the Supreme Court unanimously held that those lawsuits must be filed in federal district courts rather than federal courts of appeals. Although the decision says nothing about the rule’s merits, it resolves an important procedural and strategic quandary and will have ripple effects beyond this case.

The dispute over the appropriate federal forum is rooted in a provision of the act, 33 U.S.C § 1369(b)(1), which lists certain types of challenges that litigants must file in the federal courts of appeals rather than in the ordinary forum of federal district court. Specifically, Section 13691(b)(1) designates seven types of actions by the Environmental Protection Agency for direct appellate review. The government and its fellow respondents had argued that challenges to the WOTUS rule fell within two provisions of that list: subsection (E), which covers actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,” or subsection (F), which covers actions “in issuing or denying any permit under section 1342 of this title.” Today’s decision rejects both of those options, requiring litigants instead to file in district court.

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This morning the Supreme Court issued additional orders from last week’s conference. On Friday, the justices announced that they would review Hawaii’s challenge to the most recent iteration of the president’s “travel ban.” Today the court granted review in an environmental-law case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service.

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Today is the first weekday of the federal government shutdown, but few court-watchers are surprised that the Supreme Court is open for business.

As Andrew Hamm reported for this blog on Sunday, the court operated as usual during the 2013 and 1995 government shutdowns, even conducting its entire two-week argument session in October of 2013. Although the federal courts get some of their budgets from a congressional appropriation, they can operate for about three weeks on court-fee balances and other funds, according to the Administrative Office of the U.S. Courts.

Today is a scheduled day for orders and opinions for the Supreme Court, after which the court is taking its four-week midwinter recess.

So, the justices take the bench as normal at 10 a.m. Or at least five of them do. Four are absent, which is not unusual for these non-argument sessions.

Some justices absent for today’s opinions (Art Lien)

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Almost 10 years ago, Theodore Wesby attended a party in the northeast section of Washington, D.C., that his own attorney would later describe as “raucous.” There were strippers offering lap dances, plenty of alcohol, people having sex upstairs, and (at least the smell of) marijuana. The celebration ended abruptly, however, when police received complaints about the party from neighbors, who also told them that the house should have been empty. Police arrested the partygoers for trespassing and took them to the police station, where they were eventually charged with disorderly conduct. Those charges were dropped, but Theodore Wesby and 15 other partygoers then filed their own lawsuit, arguing that the police had lacked probable cause to arrest them because the officers didn’t have any reason to believe that the partygoers knew that they weren’t supposed to be there. The lower courts agreed, ordering the police officers to pay the partygoers nearly a million dollars in damages and attorney’s fees, but today the Supreme Court reversed.

Justice Thomas with opinion in District of Columbia v. Wesby (Art Lien)

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In 2010, Andrew Cilek went to his local polling place in Hennepin County, Minnesota, to vote. Cilek was wearing a T-shirt that had three different images on it: the Tea Party logo, the message “Don’t Tread on Me,” and an image of the Gadsden flag, which dates back to the American Revolution but is often associated these days with the Tea Party and libertarianism. Cilek also wore a small button bearing the message “Please I.D. Me,” worn by opponents of voter fraud. An election worker in the polling place told Cilek he would have to cover up or take off the shirt and button. Cilek refused to do so, and later made two more attempts to enter the polling place. On his third try, he was allowed to vote, but an election worker took down his name and address.

The source of the clash was a Minnesota law which provides that a “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” Cilek may have gotten mad at the state for restricting his apparel, but he also decided to get even: He went on to become the executive director of the Minnesota Voters Alliance, which describes itself as a “nonpartisan political organization” made up of “citizens, volunteers, and experts committed to safeguarding and improving our elections process.” And next month the Supreme Court will hear oral argument in the group’s challenge to the constitutionality of the Minnesota law.

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We live-blogged this morning as the Supreme Court released orders and opinions. The transcript of the live blog is available at this link.

Posted in Live

OT2017 #12: “False Idol”

By on Jan 22, 2018 at 7:25 am

It’s a federal courts feast this week, and the main course is a conversation with Professor Stephen Vladeck of the University of Texas School of Law, who argued for the petitioner in Dalmazzi v. United States. He’ll give us the answers to three very important questions:

1) At 6 feet 8 inches tall, did he crank up the podium in the courtroom before addressing the justices?
2) What is the Golden CAAF award?
3) How on earth do you answer Justice Anthony Kennedy’s question about one of the most important cases in Supreme Court history?

For appetizers, we’ll provide a party platter of the grants that came out immediately after we finished recording last week’s episode. And for dessert, we’ll dish out a double scoop of hotline calls.

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