Editor's Note :

Editor's Note :

There is a possibility of opinions on Wednesday, February 22. We will begin live-blogging at 9:45 a.m.
On Wednesday the court hears oral argument in Kindred Nursing Centers Limited Partnership v. Clark. Ronald Mann has our preview.

Petition of the day

By on Feb 17, 2017 at 11:14 pm

The petition of the day is:

16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

Court releases April calendar

By on Feb 17, 2017 at 3:21 pm

Yesterday the Senate Judiciary Committee announced that the confirmation hearing for Judge Neil Gorsuch will begin on March 20, creating at least the possibility that, if confirmed, Gorsuch could join the court’s current eight justices in time for the April sitting, which begins on April 17. Today the justices released the calendar for the April sitting, during which the court will hear 13 arguments – including an important religious liberty case that had been granted in January 2016, nearly one month before the February 13, 2016, death of Justice Antonin Scalia, whom Gorsuch would succeed on the court.

The justices agreed to review Trinity Lutheran Church v. Pauley on January 15, 2016. Under the court’s normal procedures, the case – in which a Missouri church is arguing that its exclusion from a state program that provides funds to nonprofits to resurface their playgrounds with rubber from recycled tires violates the Constitution – would have been argued in either April or fall of 2016. But the case (along with Murr v. Wisconsin and Microsoft v. Baker, two others granted that day) remained conspicuously absent from oral argument calendars through the end of 2016 and into the beginning of 2017. Although there is no way to know with certainty what accounted for the delay, one possibility was that the justices were hoping to avoid a 4-4 tie, in the absence of a ninth justice. On February 3, three days after President Donald Trump announced the Gorsuch nomination, the court released its March calendar, which included Murr and Microsoft but not Trinity Lutheran.

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Friday round-up

By on Feb 17, 2017 at 7:32 am

At Law.com, reporters “canvassed prominent lawyers from around the country for what questions they would like to see asked” at Gorsuch’s Senate confirmation hearing, which begins on March 20. At the Election Law Blog, Rick Hasen cites a report that Gorsuch disavowed statements in a 2005 National Review article in which the judge asserted that liberals’ “’overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary,’” depriving us of “’the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide’”; Hasen urges senators to ask Gorsuch how his views have changed, noting that theanswer would be illuminating as to the judge’s approach to access to the courts and constitutional rights.”

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Petition of the day

By on Feb 16, 2017 at 11:11 pm

The petition of the day is:

16-759

Issues: (1) Whether a defendant “induce[s]” the assent of another person, within the meaning of 18 U.S.C. § 2422, where the defendant accepts the request of the other person, who has already assented to the course of conduct prior to and independent of any action by the defendant; and (2) whether the court of appeals correctly applied the harmless-error doctrine to the exclusion of evidence of a government investigation showing the petitioner’s lack of interest in sex involving any underage person prior to contact with the government, where the petitioner’s lack of predisposition was essential to his entrapment defense.

The nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future.

This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and analysis about how Gorsuch may handle everything from employment-law cases to white-collar-crime issues. The second phase will take place in just over a month, when the 20 members of the Senate Judiciary Committee try to figure out what kind of questions to ask the nominee that will actually shed any light on his views.

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Thursday round-up

By on Feb 16, 2017 at 7:07 am

Last weekend, Judge Neil Gorsuch submitted his Senate Judiciary Committee questionnaire. Amy Howe reports on the submission for this blog. Advice and Consent (podcast) features a discussion of the judge’s responses, focusing on his “record on siding with corporate interests.”

At LegalWritingPro, Ross Guberman offers two posts on Gorsuch’s vaunted writing style: In the first, Guberman identifies four of Gorsuch’s gifts as a writer, but concludes that “he has yet to settle on a consistently confident voice”; the second post enumerates what Guberman views as five weaknesses in Gorsuch’s writing. At Vinson & Elkins’ Lincoln’s Law Blog, John Elwood and Crystal Y’Barbo Stapley look at Gorsuch’s slim record in False Claims Act cases, concluding that although “this small handful of cases is not enough to reflect a ‘trend,’ the decisions have aspects FCA defense counsel may find encouraging.”

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Petition of the day

By on Feb 15, 2017 at 11:23 pm

The petition of the day is:

16-498

Issues: (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitutions separation of powers principles; and (2) whether a statute which does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

Yesterday the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet held a hearing on judicial transparency and ethics. Although three witnesses provided testimony about concrete areas of reform, recent executive branch controversies overshadowed the ostensible purpose of the hearing.

Rep. Jerrold Nadler (D-N.Y.) spoke out against what he characterized as President Donald Trump’s recent attempts to “delegitimize the judiciary.” Similarly, Rep. John Conyers (D-Mich.) recalled Trump’s allegations of bias against Judge Gonzalo Curiel during the presidential campaign. Conyers urged the subcommittee to “do everything possible to make sure the system is not undermined.”

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Gorsuch submits Senate questionnaire

By on Feb 15, 2017 at 12:57 pm

Judge Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, was first contacted about a possible nomination to the court on December 2, 2016 – nearly two months before he was actually nominated. That information came over the weekend, when Gorsuch submitted his responses to a questionnaire from the Senate Judiciary Committee.

Gorsuch’s initial conversation about the potential nomination was with Leonard Leo, the executive vice president of the Federalist Society, who advised Trump during the selection process. Over a month later, on January 5, 2017, Gorsuch met with Donald McGahn, currently the White House counsel and then part of the Trump transition team, as well as Vice President Mike Pence, presidential advisor Steve Bannon, Mark Paoletta (now the counsel to the vice president), and White House chief of staff Reince Preibus. Nine days later, Gorsuch met with Trump himself. On January 27, McGahn told Gorsuch that Trump planned to nominate him to fill the vacancy on the Supreme Court – which Trump himself confirmed a few days later, in a call on January 30.

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Kindred Nursing Centers Limited Partnership v. Clark so closely resembles several of the court’s recent cases that you’d have to be a pretty close reader if you didn’t wonder whether they’d already decided this one. Suffice it to say that the court has granted review to decide if the Federal Arbitration Act pre-empts a decision of a state supreme court holding an arbitration agreement unenforceable based on the lower court’s doubt that individuals benefit from pre-dispute arbitration agreements. If you think I’m recycling my posts – no, this is not DIRECTV v. Imburgia or Nitro-Lift Technologies v. Howard or even Marmet Health Care v. Brown. This really is a different case. Well, maybe not all that different.

arbitration-agreement

The specific context here is a nursing home in Kentucky, operated by the petitioner, Kindred Nursing Centers. Before entering the home, residents sign powers of attorney designating individuals like the respondents, Janis Clark and Beverly Wellner, as their attorneys-in-fact. The powers of attorney are standard forms that grant broad general authority over the residents’ future business affairs, including power to sign all “contracts”; they do not, though, specifically mention arbitration. Relying on those powers of attorney, the agents signed standard pre-dispute arbitration agreements on behalf of the residents.

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