Editor's Note :

Editor's Note :

We hosted an online symposium on the October Term 2016's racial-gerrymandering decisions. Contributions to the symposium are available at this link.

In most cases, Supreme Court review is discretionary: Four justices must vote to grant a petition for certiorari — a party’s request for review of a lower court’s decision. Chief Justice Earl Warren used to assign his law clerks the responsibility of reviewing all the many cert petitions filed “in forma pauperis,” or without payment of a filing fee. Unlike petitioners with paid counsel, who send multiple copies of their petitions, indigent petitioners in the Warren Court era submitted only one document.

Those were the days before the court had a Xerox machine, an invention Warren resisted, and before the “cert pool,” a practice instituted by the next chief justice, Warren Burger, in which clerks from different chambers pool their resources to review the thousands of cert petitions the court receives each year. Warren’s clerks reproduced on carbon paper eight duplicates of potentially significant IFP petitions to distribute among the justices.

This is how Timothy Dyk, long before becoming a judge on the U.S. Court of Appeals for the Federal Circuit, came across the handwritten petition of an inmate in Florida, Clarence Gideon, in 1962. Gideon argued that under the Sixth Amendment (applied to the states through the due process clause of the 14th Amendment), he had a constitutional right to trial counsel.

Dyk, who told this story as part of a panel discussion Wednesday night at the Supreme Court sponsored by the Supreme Court Historical Society and the Supreme Court Fellows Association, had been looking for just such a petition. Warren had specifically instructed Dyk to find a case that raised the right-to-trial-counsel issue.

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Friday round-up

By on May 12, 2017 at 7:09 am

Briefly:

  • In The National Law Journal (subscription or registration required), Erin Mulvaney reports that in their private conference yesterday, the justices considered a cert petition that “draws into question how much an outdoor workplace needs to consider the wildlife—in this case, bugs—and protect its employees from harm or injury.”
  • In USA Today, Richard Wolf reports on the prospects for the Trump administration’s travel ban in the Supreme Court, noting that although nearly “all the judges who have heard the administration claim the right to restrict immigration from countries it deems as security risks have said the travel ban discriminates against immigrants based on their religion,” and the “4th Circuit and 9th Circuit appeals courts now considering the case are likely to agree, based on their makeup,” “the Supreme Court may be another story.”

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Petition of the day

By on May 11, 2017 at 11:23 pm

The petition of the day is:

16-1074

Issue: Whether, when a Jones Act seafarer alleges negligence based on asbestos exposure, the applicable causation test is the ‘featherweight’ causation standard, or the ‘substantial factor’ causation test as applied in products liability cases.

Thursday round-up

By on May 11, 2017 at 7:35 am

Briefly:

  • In an op-ed in the Washington Examiner, Bradley Smith urges the court to grant review in a campaign finance case challenging restrictions on contributions to state and local political parties, arguing that it “makes no sense to send state and local parties to the back of the bus when it comes to political campaigns.”
  • In The Atlantic, Garrett Epps wonders what Justice Anthony Kennedy, who is rumored to be considering retirement from the court and whose “devotion to America” and “true allegiance to the Constitution” are clear, thinks a “president … who has shown no understanding of judicial independence” might do “with the gift of Kennedy’s seat.”
  • At his eponymous blog, Sheldon Nahmod looks at County of Los Angeles v. Mendez, a Fourth Amendment civil action stemming from a police search that resulted in a shooting; he observes that there “have been other section 1983 proximate cause cases before the Supreme Court, but this one is different because it raises reasonable foreseeability (and superseding cause) as the proximate cause test in a split-second decision making setting.”

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Petition of the day

By on May 10, 2017 at 11:23 pm

The petition of the day is:

16-1071

Issue: Whether the Fifth Amendment’s due process clause precludes federal courts from exercising personal jurisdiction in this suit by American victims of terrorist attacks abroad carried out by the Palestinian Authority and the Palestine Liberation Organization.

In its conference of May 11, 2017, the court will consider petitions involving issues such as whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law; whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2 of the Voting Rights Act.

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Wednesday round-up

By on May 10, 2017 at 7:14 am

Briefly:

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Petition of the day

By on May 9, 2017 at 11:23 pm

The petition of the day is:

16-1067

Issue: Whether the parenthetical phrase “not to exceed 25 percent,” as used in 42 U.S.C. § 1997e(d)(2), means any amount up to 25 percent (as four circuits hold), or whether it means exactly 25 percent (as the U.S. Court of Appeals for the 7th Circuit holds).

 
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Relist Watch

By on May 9, 2017 at 10:19 am

John Elwood reviews Monday’s relists.

So on only our third try, we were correct that Justice Neil Gorsuch would fully participate in the court’s conference (with the usual number of incidental recusals) to discuss potential grants and the like. It may have been a milestone in the life of the court – just like when the newest member of the cafeteria committee leaves his mark on the court’s menu (NB: Justice, you’ll get less ribbing for adding poutine if you call the dish “gravy cheese fries.”). But it was largely a status quo conference. The court granted a couple of cases (both, gratifyingly, relists); the rest of the last batch of relists are taking another turn on the relist wheel.

The returning cases include, a bit surprisingly, Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which raises (among other issues) the same question as Merit Management Group, LP v. FTI Consulting, Inc., 16-784, granted last Monday. I would have expected the court simply to hold it for Merit, but perhaps the justices need more time to figure whether to grant on another of Deutsche Bank’s issues.

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Tuesday round-up

By on May 9, 2017 at 6:33 am

Briefly:

  • At Empirical SCOTUS, Adam Feldman examines the attorneys, law firms and interest groups that have argued cases or filed amicus briefs at the court this term, concluding that although “there is no lack of participation in Supreme Court litigation, there are some attorneys and firms that are involved far more than others,” and that most “of these repeat players are not new to the Court and have been recognized as Supreme Court regulars for years.”
  • In an op-ed at CNN, Elizabeth Wydra remarks on recent rumors that Justice Anthony Kennedy may be contemplating retirement, warning that “any nominee to replace Justice Kennedy would be intent on demolishing the key pillars of his legacy.”

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

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