Editor's Note :

Editor's Note :

We expect additional orders from the January 19 conference on Monday at 9:30 a.m. There is a possibility of opinions on Monday at 10 a.m. We will begin live-blogging at 9:25 a.m.

More orders, but no new grants

By on Jan 16, 2018 at 10:53 am

The Supreme Court issued additional orders this morning from last Friday’s conference. The justices added 12 new cases, for a total of 11 hours of argument, to their calendar for this term last week, but they did not add any new cases today.

After announcing on Friday that they would review a pair of appeals involving allegations of racial gerrymandering in Texas, the justices today announced that they would not review two other redistricting appeals from that state, which involve allegations of partisan gerrymandering. The justices dismissed Texas Democratic Party v. Abbott and Morris v. Texas “for want of jurisdiction” – a move that was somewhat surprising considering that the justices currently have two other partisan-gerrymandering cases (out of Wisconsin and Maryland) on their docket. But the state had urged the court not to take on the Democratic Party’s appeal, telling the justices that the orders at the heart of the Democratic Party’s argument were not final (and therefore cannot be appealed) when they were entered; in any event, the state added, the time to appeal those orders, which were entered four and six years ago, has long since passed. (Hat tip: Steven Mazie) Perhaps signaling that it did not regard the case as even worthy of a response, the state waived its right to oppose the appeal in Morris; both strategies were apparently successful.

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Tuesday round-up

By on Jan 16, 2018 at 7:18 am

This morning the justices will hear oral argument in two cases. First up is civil procedure case Hall v. Hall, which asks when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under Federal Rule of Civil Procedure 42. Howard Wasserman previewed the case for this blog. Kristina Hurley and Michael Iadevaia provide a preview at Cornell Law School’s Legal Information Institute.

The second case this morning is Dalmazzi v. United States (consolidated with two other cases), in which the court will consider the effect of the dual-officeholder ban on military judges. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Madelaine Horn and Conley Wouters preview the case for Cornell.

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Posted in Round-up

This week, we start with some bad news and some good news. The bad news? The Supreme Court has a mouse problem. The good news? Serial Supreme Court litigant Fane Lozman is on Twitter, and he’s a Friend of the Show. We also have some follow-up about Hargan v. Garza, the case about undocumented minors who want abortions. It turns out this situation is a lot more common than we appreciated, and we talk about why. 

 The Court handed down Tharpe v. Sellers last week, a death-penalty habeas case with a fairly shocking juror affidavit (to give you a sense: it both uses the n-word and invokes O.J. Simpson). So we’re joined by official First Mondays Habeas Wizard (and part-time host) Leah Litman to break it down and try to answer this question: How does a guy on death row get to 72 hours from being executed when he’s got an affidavit from a juror admitting that race played a role in his getting the death penalty? Later, we’ll discuss McCoy v. Louisiana, another death-penalty case, presenting a different unsettling question: Can a lawyer for the defendant in a murder case admit that the defendant committed the murder, even over the defendant’s express objection? 

In terms of recaps, we talk about Husted v. A. Philip Randolph InstituteHusted is an interesting case about the National Voter Registration Act of 1993, which both requires states to make reasonable efforts to take people off the voting rolls when they’ve moved and forbids taking them off because they haven’t voted. Ohio uses non-voting as a reason to send people letters asking them to confirm that they haven’t moved; if they don’t reply, and keep not voting, they’re taken off the lists. Legit? Listen and learn. 

But that’s not all! We discuss the solicitor general’s cert petition in Trump v. Hawai’i, aka the travel-ban case, the unusual pro per amicus argument coming up next week in Dalmazzi v. United States, and more.

If you’re enjoying the show, don’t forget to follow us on Twitter. We’re @isamuel@danepps, and @LeahLitman—and our beloved producer is @MelodyRowell. You can also check us out on Patreon for exclusive content like bonus episodes, livestreams, and access to the Amici Slack. 


This week at the court

By on Jan 14, 2018 at 12:00 pm

The Supreme Court released additional orders from the January 12 conference on Tuesday. The court did not add any new cases to its docket. On Tuesday the justices heard oral argument in Hall v. Hall and Dalmazzi v. United States. On Wednesday the justices heard oral argument in Encino Motorcars, LLC v. Navarro and McCoy v. Louisiana. The calendar for the January sitting is available on the court’s website. On Friday the justices met for their January 19 conference; our list of “petitions to watch” for that conference is available at this link. Friday afternoon the court granted Trump v. Hawaii, a challenge to the latest version of the Trump administration’s travel ban.


Petition of the day

By on Jan 12, 2018 at 8:20 pm

The petition of the day is:


Issues: (1) Whether the validity under the import-export clause of a non-discriminatory local business license tax calculated on the basis of gross receipts should be evaluated using the Supreme Court’s approach in Michelin Tire Corp. v. Wages or in Richfield Oil Corp. v. State Board of Equalization; and (2) whether a local business license tax calculated based on gross receipts, which does not specifically target imports or exports, violates the import-export clause if some of the gross receipts include export sales.

With time running out to add new cases to its merits docket for this term (at least without expedited briefing schedules), the Supreme Court announced this afternoon that it would take on 12 new cases, for a total of 11 additional hours of argument. Today’s order helps the justices to round out their calendar for their April sitting, which begins on April 16. The new cases – which include challenges to Texas’ redistricting plans and a request to overrule longstanding Supreme Court precedent on the collection of sales taxes by out-of-state retailers – also increase the number of high-profile cases in a term already packed with blockbusters.

The announcement that the justices would hear two appeals involving redistricting in Texas did not come entirely as a surprise. In September, the Supreme Court blocked two lower-court orders that had invalidated two of Texas’ federal congressional districts and the state’s maps for the lower house of the Texas legislature. Those orders, issued in August, had given the Texas governor three days to decide whether to call a special session of the legislature and directed the state to be ready to redraw the maps by early September. The justices’ decision to put the lower-court orders on hold suggests that at least five of them saw some merit to the state’s arguments. Four of them, however, were more skeptical: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all indicated that they would have denied the state’s request.

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Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases

Friday round-up

By on Jan 12, 2018 at 7:07 am


  • At the Election Law Blog, Rick Hasen explains why he expects the court to announce this afternoon that it will review several redistricting cases from Texas, remarking that “[i]t is shaping up to be a blockbuster term on gerrymandering at the Supreme Court.”
  • In an op-ed for the Washington Examiner, Henry Miller urges the court to review Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which he calls the “amphibian equivalent of a shaggy-dog story,” in which “the government is trying to seize control of land it does not own in order to protect an endangered species of frog that does not live there.”
  • NFIB contends that the justices should grant a cert petition that asks “whether landowners [bringing takings claims against the federal government] should be allowed a right to jury trial.”
  • At Take Care, Leah Litman takes issue with Texas’ amicus brief in support of the federal government in Hargan v. Garza, “the case in which the Trump administration is attempting to impede undocumented young women’s access to abortion by refusing to release the women from its custody so that they can obtain abortions,” allowing that the brief “does, however, have one thing going for it: Texas’s position is a better reflection of how the Office of Refugee Resettlement views these young women—as something less than autonomous human beings.”

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Posted in Round-up

Petition of the day

By on Jan 11, 2018 at 8:20 pm

The petition of the day is:


Issue: Whether the Indiana procedure which allows trial-counsel Strickland v. Washington claims on direct appeal in one of two ways–defendants may assert the claims in their brief on direct appeal if they choose to make no further record in support of their claims or, if they wish to develop a record, defendants may suspend their direct appeal while they develop the factual record in the trial court–satisfies the MartinezTrevino doctrine, which allows a federal habeas court to hear a substantial claim of ineffective assistance of trial counsel if a state denies a meaningful opportunity to raise the claim on direct appeal.


In 2011, Robert McCoy was tried on three counts of first-degree murder for the 2008 shooting deaths of Christine and Willie Young – the mother and stepfather of McCoy’s estranged wife, Yolanda – and Gregory Colston, Yolanda’s son, in Bossier Parish, Louisiana. Although McCoy steadfastly maintained that he was innocent, his attorney took a different tack, conceding McCoy’s guilt in an unsuccessful attempt to spare his life. Next week the Supreme Court will hear oral argument on whether the lawyer’s decision was a reasonable effort to make the best of a bad situation or instead a violation of McCoy’s constitutional rights, entitling him to new trial.

The path to McCoy’s trial was a rocky one. McCoy insisted that he was in Houston at the time of the murders, and that he was being framed by police in retaliation for revealing that local police were involved in a drug ring. But statements from two of McCoy’s friends put McCoy in Bossier Parish when the Youngs and Colston were killed, and implicated him in the murders.

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