Editor's Note :

Editor's Note :

We expect orders from the justices' May 25 conference on Tuesday at 9:30 a.m. There is also a possibility of opinions on Tuesday at 10 a.m. We will begin live-blogging at 9:25 a.m.

In its conference of May 25, 2017, the court will consider petitions involving issues such as whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate; whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002; and whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

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[UPDATED: Justice Elena Kagan has requested a response to the state’s application, due on Wednesday, June 7, by 11 a.m.]

In March, the state of Wisconsin asked the Supreme Court to review a decision by a three-judge court striking down the redistricting map that the Republican-controlled legislature created after the 2010 census. The three-judge court concluded that the map was the result of partisan gerrymandering – that is, purposely drawing district lines to favor one party and put another at a disadvantage. The justices will consider the case at their June 8 conference, but yesterday Wisconsin added a new request to the case, asking the Supreme Court to block a court order requiring the state legislature to create a new plan by the fall.

The issue of partisan gerrymandering has deeply divided the Supreme Court. In 2004, the justices considered a challenge to Pennsylvania’s redistricting plan and issued a split ruling that resolved little. Four justices believed that courts should never review partisan gerrymandering claims, reasoning that it is too hard to come with a manageable test to determine when politics plays too influential a role. Four other justices believed that courts should be able to review partisan gerrymandering claims. Justice Anthony Kennedy provided the crucial vote in the case: He agreed that the Supreme Court should stay out of the Pennsylvania case, but he left open the door for courts to have a role in reviewing partisan gerrymandering cases in the future if a workable standard could be found.

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Wednesday round-up

By on May 24, 2017 at 7:35 am

The court’s decision Monday in Cooper v. Harris, in which the justices upheld a lower court’s ruling that North Carolina relied too heavily on race in drawing the boundaries of two congressional districts, continues to draw attention, including from this blog, where a symposium on the court’s racial-gerrymandering cases this term has just concluded. In The Economist, Steven Mazie reports that the “rare coalition of the Supreme Court’s four liberals with Clarence Thomas, the most conservative justice, is less surprising than it appears,” because “Justice Thomas consistently votes against official consideration of race, no matter the political fallout.” At PrawfsBlawg, Roderick Hills offers “kudos to Thomas for sticking to his color-blind guns” and “rejecting the temptation of abandoning his principles for short-term partisan advantage.” At Modern Democracy, Michael Parsons calls the decision “a mixed bag,” explaining that it offers a “[g]ood short-term result and good clarification of the law on ‘race-as-a-proxy-for-politics,’” but “bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.” At Slate, Mark Joseph Stern maintains that Monday’s decision “will not singlehandedly fix the problem of gerrymandering in America,” because as “long as partisan gerrymandering remains legal, legislators will continue to draw districts that disfavor the opposing party, entrenching their own power for years.” At Empirical SCOTUS, Adam Feldman offers linguistic statistics from the opinion and the oral argument.
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Posted in Round-up

Petition of the day

By on May 23, 2017 at 11:23 pm

The petition of the day is:


Issues: (1) Whether Eastman Kodak Industry Co. v. Image Technical Services, Inc.‘s Rule 56 standard or the more stringent “tends to exclude the possibility of independent action” standard articulated in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. applies where the alleged conduct, unlike in Matsushita, is not inherently pro-competitive and is not economically or otherwise irrational; and (2) whether the U.S. Court of Appeals for the 1st Circuit improvidently applied the heightened “tends to exclude” test to the petitioner’s concerted refusal to deal claim, in circumstances in which it is not warranted, and thus erroneously denied the plaintiff its right to have its case heard by the trier of fact.

Anita Earls is the executive director of the Southern Coalition for Social Justice. She serves as counsel for the plaintiffs in two pending racial-gerrymandering cases, Dickson v. Rucho and Covington v. North Carolina, as well as a pending partisan-gerrymandering case, League of Women Voters v. Rucho.

For all the rhetorical flourishes back and forth between Justice Elena Kagan’s opinion for the majority and Justice Samuel Alito’s opinion concurring in part and dissenting in part, the Supreme Court’s ruling in Cooper v. Harris is not a watershed development in the theory of racial gerrymandering. Two of the central legal questions answered there had been answered in prior cases.

With regard to North Carolina’s Congressional District 1, which the legislature argued was justified as a race-based district because it was drawn to comply with Section 2 of the Voting Rights Act, the court applied Bartlett v. Strickland and Thornburg v. Gingles, to come to the unremarkable conclusion that absent evidence of the third prong of Gingles, the legislature was not justified in dramatically increasing the number of majority-black districts in the state. In other words, where white bloc voting is not usually defeating the candidate of choice of black voters — where coalition districts are working — the Voting Rights Act does not demand the creation of majority-black districts.

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Hans A. von Spakovsky is a Senior Legal Fellow and Manager of the Election Law Reform Initiative at The Heritage Foundation and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department. Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

For anyone who seeks clarity in what states must do in redistricting to comply with the Voting Rights Act and the equal protection clause of the 14th Amendment, the Supreme Court’s decision in Cooper v. Harris will certainly not provide it. And this seems to be the umpteenth redistricting case out of North Carolina to get to the Supremes. If the court is in session, there seems to almost always be a North Carolina redistricting case before it.

This ruling simply adds to the confused state of the law on redistricting and how much legislatures can (or must) take into account race when trying to draw up new congressional lines. And it certainly does not provide any real guidance on how to distinguish between race and partisan politics to determine which of those is the driving factor in the redistricting process.

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Andrew Brasher is the solicitor general of Alabama.

I think the most important aspect of Cooper v. Harris is not the Supreme Court’s unanimous decision on North Carolina’s Congressional District 1, but its divided decision on Congressional District 12. Alabama Democratic Conference v. Alabama left open two questions that Cooper and an earlier case from this term, Bethune-Hill v. Virginia State Board of Elections, try to answer: (1) How does a court go about deciding whether a state drew an individual district predominantly on the basis of race such that strict scrutiny applies? (2) When race predominates and strict scrutiny applies, how does a court evaluate whether the Voting Rights Act justifies the decision to consider race?

The court’s answer in Bethune-Hill and Cooper is that there is a low bar for plaintiffs to show racial predominance, but an even lower bar for surviving strict scrutiny. In other words, it may be relatively easy to get to strict scrutiny, but the scrutiny is not all that strict.

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Kimberly Hermann is General Counsel at Southeastern Legal Foundation.

The government should not consider race when it is drawing electoral district lines – the lines should be drawn based on where people live, not based on the color of their skin. With that said, we would be naïve to ignore the delicate balancing act thrust upon state legislatures when drawing redistricting maps. Electoral districting is one of the most difficult tasks that state legislatures face. On the one hand are the many requirements of the Voting Rights Act that result in states considering and sorting their citizens based on race, and on the other hand is our color-blind Constitution, including the equal protection clause’s prohibition against certain racial classifications. These competing requirements demand that states consider race, but not too much or in the wrong way.

To the extent that the Voting Rights Act and the Supreme Court’s cases call for the consideration of race in redistricting, those calls should be interpreted narrowly and consistently with the Constitution. This is because racial classifications of any sort are inherently suspect and demand the most exacting scrutiny. In answering questions about how governments should zig and zag in drawing district lines, the Supreme Court’s past precedents support striking a balance that is simultaneously most consistent with the statutory text and the Constitution and least race-conscious. Similarly, the statutory text should be interpreted so that it avoids racial classifications and preferences that are presumptively unconstitutional.

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In Water Splash v. Menon, the Supreme Court resolved whether the Hague Service Convention –formally known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters – prohibits or authorizes service by mail. Eight members of the court (Justice Neil Gorsuch did not participate) unanimously adopted the view advocated by the U.S. solicitor general, which one might also dub the Goldilocks approach: The convention neither authorizes nor prohibits service by mail. Instead, it does something in between, requiring courts to look to the rules of the sending and receiving jurisdictions.

A primary purpose of the Hague Service Convention is to require signatory states to designate a central authority that can handle cross-border service requests. But the convention does not require litigants to use that central authority to serve documents; it also authorizes other methods of service, such as via consular agents, and permits signatory countries to authorize still other methods via bilateral agreement or international law. However, the convention (at least in its English translation) is less clear about whether cross-border service by mail is permissible, giving rise to a split among lower state and federal courts.

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Where have I read this before: U.S. Court of Appeals for the Federal Circuit – patent-holding plaintiffs win; Supreme Court – corporate defendants win. The Supreme Court struck yet another blow against the expertise of the Federal Circuit, the specialized appellate court for patent cases, with Monday morning’s opinion in TC Heartland LLC v. Kraft Foods Group Brands, rejecting the rules on patent venue that the Federal Circuit has been administering for more than 25 years. The odd part of it is that this time it was the Federal Circuit saying that patent litigation should look more like conventional litigation and the Supreme Court saying that patent litigation needs to have special rules different from the rules of ordinary civil cases. The Federal Circuit can’t win even when it decides that patent litigation should follow the well-developed rules of mainstream civil procedure!

To understand the issue dividing the Federal Circuit from the Supreme Court, a little background about federal civil procedure is useful. Generally speaking, modern venue statutes treat corporations as present in any state in which they conduct a substantial amount of business. Because venue rules generally permit a plaintiff to sue a defendant in any state in which it is present, that means that in general civil litigation, a plaintiff suing a large company that does business nationwide usually can pick just about any state that seems to provide a forum favorable to the plaintiff. That practice replaced an earlier 19th-century regime, in which corporations were treated as residing in (or “inhabiting”) only the single state in which they were incorporated.

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