Editor's Note :

Editor's Note :

We are hosting an online symposium on Epic Systems v. Lewis, in which the court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. Contributions are available at this link.

Monday round-up

By on May 14, 2018 at 7:24 am

Briefly:

  • At the Pew Research Center’s FactTank blog, Kristen Bialik discusses a new Pew report showing that “[a] majority of Americans (55%) now say the U.S. Supreme Court should base its rulings on what the Constitution “means in current times,” while 41% say rulings should be based on what it “meant as originally written,” representing “a shift in public opinion, which was divided on this question for more than a decade.”
  • At Legal Sports Report, Ryan Rodenberg notes that “[a]fter nearly six years of sustained litigation, the US Supreme Court sports betting case could be decided anytime between Monday and the end of June,” and lists “the most memorable quotes from lawyers, judges, and sports league executives in various court proceedings leading up to the dispute landing on the Supreme Court’s steps.”
  • At In Defense of Liberty, Timothy Sandefur urges the court to review a challenge to “a Missouri law making it illegal to braid hair for a living without government permission—and requiring extensive training and education before people can get that permission,” which presents “the question of whether the rational basis test really allows judges to simply make things up.”
  • At Potomac Litigation, Tom Cummins looks at “two data privacy class actions [on] next fall’s docket: Lamps Plus, Inc. v. Varela[, which] concerns a threshold issue, when plaintiffs can proceed as a class in arbitration[, and] Frank v. Gaos[, which] concerns an ultimate issue, securing court approval of a class settlement (and not just any settlement — but one in which you yourself are a class member, assuming that you’ve used Google).”
  • At The National Law Journal, Tony Mauro calls “RBG,” the new documentary about Justice Ruth Bader Ginsburg, “a very accessible movie about the human and professional sides of an increasingly larger-than-life judicial icon, now 85.”

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

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This week at the court

By on May 13, 2018 at 12:00 pm

On Monday the Supreme Court released orders from the May 10 conference. The justices added two new cases to their docket for next term: BNSF Railway Company v. Loos and Air and Liquid Systems Corp. v. Devries. The justices also called for the views of the solicitor general in Osage Wind, LLC v. Osage Mineral Council.

In addition to orders, the justices on Monday released their opinions in Murphy v. NCAADahda v. U.S.McCoy v. LouisianaByrd v. U.S. and U.S. v. Sanchez-Gomez.

The justices met on Thursday for their May 17 conference.

 
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Petition of the day

By on May 11, 2018 at 6:00 pm

The petition of the day is:

17-1398

Issues: (1) Whether the United States Forest Service’s powers under the property clause of the Constitution to limit gas-powered motorboat use on lakes in congressionally designated wilderness areas are dependent upon and subservient to whether a state has first acted to restrict motorboat activities on the same lakes; and (2) whether prior existing uses of property near the many national wilderness areas are immunized from and ossified against regulations to achieve the Wilderness Act of 1964’s goal to protect wildernesses and keep them “unimpaired for future use and enjoyment as wilderness,” 16 U.S.C. § 1131(a).

Friday round-up

By on May 11, 2018 at 7:23 am

Lawrence Hurley reports at Reuters that “[t]he Senate Judiciary Committee’s Republican chairman [Chuck Grassley] said on Thursday any Supreme Court justice considering retirement from the lifetime job should announce immediately so a successor can be confirmed before the November U.S. midterm election.” Eric Levitz discusses Grassley’s comments at New York magazine’s Daily Intelligencer blog.

The solicitor general’s letter to the court correcting a statement he made at oral argument in Trump v. Hawaii continues to attract comment. At Take Care, Leah Litman maintains that the “reasons to be skeptical of the Solicitor General’s claim that the president made ‘crystal clear’ that he had no intention of imposing a Muslim ban” “include statements that the President made after his purported disavowal, as well as statements that he (and other members of his administration) made after the Supreme Court argument itself,” raising “the possibility that the President or his administration would make post-decision statements about the entry ban.” At The Economist’s Democracy in America blog, Steven Mazie suggests that “the post-hearing rumpus shows that if the Supreme Court upholds the president’s proclamation when it hands down its judgment in June, it will do so without any assurances that the policy is far removed from a most incendiary campaign promise.”

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Petition of the day

By on May 10, 2018 at 6:00 pm

The petition of the day is:

17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has spoken up at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

Primus began his answer with “a plea for humility as we think about history.” “It’s so easy to think, ‘well, of course I would have done the right thing,’” he said, but “we don’t know what we would have done.”

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Thursday round-up

By on May 10, 2018 at 6:58 am

Briefly:

  • At Pacific Standard, Tom Jacobs looks at a new “analysis of 313 Supreme Court cases [that] found ‘male justices evaluate counsel based on their compliance with traditional gender norms, rewarding male counsel for cool, unemotional arguments, and rewarding female counsel for emotionally compelling arguments.’”
  • For The Wall Street Journal, Eric Morath reports on a recent study concluding that “[l]abor unions could lose hundreds of thousands of members if the Supreme Court determines this spring [in Janus v. American Federation of State, County, and Municipal Employees, Council 31] that public employees cannot be required to pay union dues.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]
  • At the Human Rights at Home Blog, Christopher Whytock “speculate[s] … about what might happen for human rights litigation after the … decision” in Jesner v. Arab Bank, in which the court held that foreign corporations cannot be sued under the Alien Tort Statute.
  • In an op-ed for The New York Times, Linda Greenhouse suggests that the upcoming decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Trump v. Hawaii “will tell us a lot about how the current court thinks about religion — specifically, how it defines religious discrimination and who it thinks needs the court’s protection.”

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

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In its conference of May 10, 2018, the court will consider petitions involving issues such as whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause; whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker sentencing guidelines unconstitutionally vague; and whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

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Petition of the day

By on May 9, 2018 at 6:00 pm

The petition of the day is:

17-1343

Issues: (1) Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible in order to impose a sentence of life in prison without the possibility of parole; and (2) whether the Eighth Amendment prohibits a life without parole sentence for a crime committed by a juvenile.

Relist Watch

By on May 9, 2018 at 12:40 pm

John Elwood reviews Monday’s relists.

Everyone has been talking about the historically slow pace of decisions this year. Various explanations have been offered for the phenomenon: The Supreme Court has more controversial cases than usual and fewer unanimous decisions; the court’s early calendars were especially heavy with contentious issues; the court’s newest justice might be writing more separate opinions; or perhaps flaming rivers of magma have threatened the court’s very survival. But it seems to me that people are overlooking the obvious answer: While many people were hoping and praying during the bleak dull days of October Term 2016 that the Supreme Court would finally get some interesting cases, nobody thought to wish that the court would ever actually decide them.

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else.

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