The Supreme Court is one week into the new term, and we’re here to catch you up. We recap last week’s arguments, including the major partisan gerrymandering case, Gill v. WhitfordWisconsin Solicitor General Misha Tseytlin, who argued the case for the state, joins us as a guest to help walk us through what went down at the argument—and to help us figure out what the justices might be thinking. We also discuss whether Justice Neil Gorsuch tipped his hand in either of the reargued immigration cases, Jennings v. Rodriguez and Sessions v. Dimaya; and what the law of contracts can tell us about the plea-bargaining case Class v. United States. We also briefly preview this week’s arguments, including Jesner v. Arab Bank, an important case about the scope of the Alien Tort Statute.

And, of course, we try to solve a lot of mysteries, too. Who is the mysterious River Master, and how can you become one? Why were all the justices but one recused from a case on the orders list? What the heck is going on with the new Supreme Court transcriptionist? Why does the solicitor general’s office have an award named after Orestes “Minnie” Miñoso? And are the Firsties drunk-dialing the First Mondays hotline?

This week at the court

By on Oct 8, 2017 at 12:00 pm

On Tuesday, the Supreme Court released orders from the October 6 conference. The court set two original-jurisdiction cases on its docket, Texas v. New Mexico and Florida v. Georgia, for oral argument “in due course.” The court also called for the views of the solicitor general in Apple v. Pepper. The court heard oral argument in Hamer v. Neighborhood Housing Services of Chicago on Tuesday and in National Association of Manufacturers v. Department of Defense and Jesner v. Arab Bank on Wednesday. The calendar for the October sitting is available on the court’s website. On Friday the justices met for their October 13 conference; our list of “petitions to watch” for that conference is available at this link.


Petition of the day

By on Oct 6, 2017 at 8:20 pm

The petition of the day is:


Issues: (1) Whether a federal court of appeals reviews de novo a district court’s dismissal with prejudice of a shareholder-derivative action based on a special litigation committee’s recommendation, as the U.S. Courts of Appeals for the 1st, 2nd, 5th, 6th, and 9th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 8th and 11th Circuits; (2) whether a federal court of appeals reviews an appeal from a Federal Rule of Civil Procedure 23.1 order in a derivative action de novo, as the U.S. Courts of Appeals for the 1st, 2nd, 6th, and 7th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 3rd, 8th, 9th, 10th, 11th, and D.C. Circuits; and (3) whether a plaintiff in a shareholder-derivative action is entitled to discovery before the court rules on a special litigation committee’s motion to dismiss.

More on the December calendar

By on Oct 6, 2017 at 7:00 pm

The Supreme Court released its calendar today for the December sitting, which begins on November 27. During the six days of the sitting, the justices will hear 10 oral arguments: Four of the days will feature two oral arguments each, while two days have only one oral argument scheduled each day. Highlights of the sitting include the much-anticipated oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado baker argues that requiring him to create custom cakes for same-sex wedding celebrations violates his right to religious freedom, and Carpenter v. United States, in which the justices will consider whether law-enforcement officials must obtain a warrant to request cell-phone records from a cell-phone service provider. The justices granted review in all of the cases on the December calendar before they returned from their summer recess; this means that the cases granted last week after the justices’ September 25 conference are likely to be scheduled for argument in the January sitting. Continue reading »

Posted in Everything Else
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

Today the Supreme Court released its calendar for the December sitting, which begins on November 27 and includes 10 hours of oral argument. Here is the schedule:

Monday, November 27:

Oil States Energy Services v. Greene’s Energy Group

SAS Institute Inc. v. Matal

Tuesday, November 28:

Cyan v. Beaver Cty. Employees Retirement Fund

Digital Realty Trust v. Somers

Wednesday, November 29:

Carpenter v. United States

Monday, December 4:

Christie v. NCAA (consolidated with NJ Thoroughbred Horsemen’s Assn. v. NCAA)

Rubin v. Iran

Tuesday, December 5:

Masterpiece Cakeshop v. Colorado Civil Rights Comm’n.

Marinello v. United States

Wednesday, December 6:

Murphy v. Smith


Friday round-up

By on Oct 6, 2017 at 7:01 am

Yesterday the parties in Trump v. Hawaii and Trump v. International Refugee Assistance Project filed letter briefs addressing the question of whether the Trump administration’s recent proclamation replacing the president’s March 6 entry ban with new restrictions renders the cases moot. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Richard Wolf for USA Today, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, and Robert Barnes for The Washington Post, who reports that “[t]he Trump administration told the Supreme Court … that there is no reason for the court to rule on the legality of the president’s previous bans on travel from certain countries, and that lower court rulings against the president’s position should be erased.” At Just Security, Marty Lederman explains that he “would not be at all surprised if the Court does ‘vacate” the opinions,” but doesn’t “think anything of much practical significance turns on whether it does so or not.”

Continue reading »

Posted in Round-up

Petition of the day

By on Oct 5, 2017 at 8:20 pm

The petition of the day is:


Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.

Both sides of the dispute over President Donald Trump’s March 6 executive order weighed in on the future of the challenges today. In filings with the Supreme Court, the federal government urged the justices to dismiss the case as moot – that is, no longer a live dispute – while the challengers told the court that it should continue to hear the case.

Today’s filings came in response to an order issued by the court on September 25, one day after Trump issued a proclamation that restricted travel to the United States by nationals of eight countries indefinitely. The justices removed the challenges, which had been scheduled for oral argument on October 10, from their October calendar and directed the two sides to brief the question whether the disputes are now moot.

Continue reading »

For decades, the scope of the federal government’s regulatory authority under the Clean Water Act has been a flashpoint for debate. In 2015, the Obama administration promulgated the “Clean Water Rule,” the most recent of several attempts to define the act’s geographic scope. By defining the key statutory term “waters of the United States,” the rule determines, among other issues, which water bodies are subject to the act’s discharge limitations and permitting requirements. Over 100 parties flooded the courts with challenges to the rule, leading to a nationwide stay. In next Wednesday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court will consider a preliminary question: Should the lawsuits challenging the rule have been filed in federal district courts, or courts of appeals? Although the Trump administration has announced its intent to withdraw the Clean Water Rule, the justices declined to stay the litigation, and the forum question remains live – with important practical and strategic implications, both in this litigation and beyond.

The case turns on a provision of the act, 33 U.S.C § 1369(b)(1), which lists seven types of actions by the Environmental Protection Agency that are reviewable directly (and exclusively) in the courts of appeals. As relevant here, the list includes actions “(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title;” and “(F) in issuing or denying any permit under section 1342 of this title.” Does review of the Clean Water Rule fall within either Subsections (E) or (F)? The U.S. Court of Appeals for the 6th Circuit said yes (to Subsection (F)) in a divided opinion, deepening confusion in the lower courts regarding the scope of Section 1369(b)(1).

Continue reading »

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