Tuesday round-up

By on Jul 26, 2016 at 7:43 am

In The New York Times, Adam Liptak reports on the Court’s disclosure of “after-the-fact changes to its decisions”; Kent Scheidegger discusses Liptak’s story and the Court’s publication practices more generally at Crime and Consequences.

Briefly:

  • At Cato at Liberty, Ilya Shapiro and Randal John Meyer urge the Court to grant review in a case by a company dubbed “Uber in the sky.”
  • In The National Law Journal, Arthur Bryant argues that, although the Court’s ruling last Term in the class-action case Spokeo v. Robins was “technically . . . a victory for the company,” as a practical matter “it was a huge loss.”
  • At Casetext, David Boyle argues that “if a candidate wants the vote of thinking people, it might be best if that candidate weren’t advocating an amendment diminishing the Supreme Court and overturning Citizens United—especially if the candidate’s name is Hillary Clinton.”

Remember, we rely exclusively 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, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petitions of the day

By on Jul 25, 2016 at 11:11 pm

The petitions of the day are:

16-74

Issue: Whether the Employee Retirement Income Security Act of 1974’s church plan exemption applies so long as a pension plan is maintained by an otherwise qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

16-86

Issue: Whether the Employee Retirement Income Security Act of 1974’s church plan exemption applies so long as a pension is maintained by an otherwise qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

Event announcement

By on Jul 25, 2016 at 10:01 am

On August 4 at 12 p.m., the DC Bar will host the next installment of its monthly seminar series on issues and cases before the Court. Andrew Grossman and John Paul Schnapper-Casteras will focus on Fisher v. University of Texas at Austin, last Term’s challenge to the university’s consideration of race in its undergraduate admissions process; this blog’s Amy Howe will serve as the moderator. Additional classes will be held on September 1 and October 6. More information and registration are available for the in-person presentation and the webinar.

 
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Monday round-up

By on Jul 25, 2016 at 6:06 am

At his eponymous blog, Lyle Denniston reports that last week the Obama administration “launched a nationwide plea for advice — technical, practical, legal and even religious — on ways to settle the bitter controversy over the Affordable Care Act’s birth-control mandate,” and he suggests that these latest developments “appeared to be a sign that private talks with religious groups over the issue have not reached a solution.”  And at Federal Regulations Advisor, Leland Beck discusses the request for information published by three federal agencies as part of the efforts to end the dispute, as well as the government’s request that the Court rehear the challenge to the Obama administration’s immigration policy when it has all nine members.  Continue reading »

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Petition of the day

By on Jul 22, 2016 at 11:23 pm

The petition of the day is:

16-14

Issue: (1) What, if any, deference is due an agency’s interpretation when it predominately interprets terms of common law in which courts, not administrative agencies, have special competence; (2) whether the circuit court erred when it held, in contravention of this Court’s long-standing definition of “common carrier,” that pilots who use the Internet to communicate are “common carriers” when those pilots do not earn a commercial profit or indiscriminately offer to share their travel plans with the general public, thus warranting remand; and (3) whether the circuit court erred in holding that the Federal Aviation Administration could, consistent with the First Amendment, lawfully discriminate against content-based Internet communications because of the message conveyed and the means chosen by pilots to convey it.

Shortly after Edward Sanford was confirmed as the Court’s seventy-second Justice in 1923, an Illinois newspaper observed that liberals were “quite as much pleased over” Sanford’s appointment as they were “distressed over that of Pierce Butler,” who had taken a seat on the Court less than a month before. “Liberals,” the paper continued, “in fact are claiming Judge Sanford as one of themselves just as they have claimed” Justices Oliver Wendell Holmes and Louis Brandeis.

More recent assessments of Sanford’s tenure have him “leaning to the right, but only slightly,” as Russell Galloway writes in a 1984 review of the Taft Court. And an article by Stephanie Slater, published this month by the Journal of Supreme Court History, reports that Sanford has “generally been thought of as a staunch conservative.” This shift in reputation and the lack of scholarly attention paid to Sanford compared with other Justices from his era make Slater’s article and a companion piece by John Scheb very timely for examining Sanford’s life and clarifying his contribution to the Court’s jurisprudence.

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Friday round-up

By on Jul 22, 2016 at 7:32 am

On Wednesday the U.S. Court of Appeals for the Fifth Circuit struck down a key provision of Texas’s voter ID law and sent the case back to the lower court, reducing the likelihood that the dispute will come to the U.S. Supreme Court soon.  Coverage comes from Lyle Denniston at his eponymous blog.  Rick Hasen has a “first take” at his Election Law Blog and more analysis at Slate, where he suggests that the ruling also contains “a road map for returning Texas’ voting rules to the supervision of the federal government.”  And in another post, Hasen compares the Texas decision to a challenge to North Carolina’s voter ID law, arguing that, “if plaintiffs lose on the voter ID issue in NC it will look just like the win in Texas: a strict law in place, with a workaround that may or may not work well on the ground.”      Continue reading »

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Thursday round-up

By on Jul 21, 2016 at 7:42 am

Yesterday the U.S. Court of Appeals for the Fifth Circuit issued its ruling in the challenge to Texas’s stringent voter ID law.  A divided en banc court struck down one key provision of the law and sent the case back to the lower court, decreasing the chances that the dispute will come immediately to the U.S. Supreme Court.  I covered the decision for this blog, with other coverage coming from Jon Herskovitz and Lawrence Hurley of Reuters and from Manny Fernandez and Erik Eckholm of The New York Times; commentary comes from Rick Hasen at his Election Law BlogContinue reading »

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Petition of the day

By on Jul 20, 2016 at 11:23 pm

The petition of the day is:

15-1387

Issue: (1) Whether respondent has Article III standing to challenge the Forest Service’s failure to reinitiate Section 7 of the Endangered Species Act (ESA) consultation on the Lynx Amendments, which were completed in 2007, after the Fish and Wildlife Service designated additional critical habitat for the lynx in 2009, when respondent cannot identify any member who has or will suffer a concrete injury as a result; (2) whether respondent’s challenge to the Forest Service’s programmatic amendments is ripe for review when respondent failed to challenge any site-specific project authorized under the amended plan provisions; and (3) whether Section 7(a)(2) of the ESA requires the Forest Service to reinitiate consultation on a completed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.

A challenge to a Texas voter identification law that some have described as the strictest in the nation now seems less likely to be headed immediately to the U.S. Supreme Court.  In a 203-page opinion that three dissenting judges characterized as “gravely fractured,” a federal appeals court today struck down one central provision of the law and sent the case back to a federal trial court for more proceedings.  The U.S. Court of Appeals for the Fifth Circuit instructed the lower court to fashion a remedy to address the problems faced by minority voters who have trouble obtaining the identification that they would otherwise need to vote in the November 2016 election.  But today’s decision was not an unqualified victory for the challengers, as the appeals court also reversed the lower court’s finding that the law was invalid because it was intended to discriminate against minority voters.  That question will now go back to the lower court for it to take another look. Continue reading »

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