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OT2018 #15: “Second Best Opinion”

The January sitting is over and the Supreme Court will be out of session for a few weeks. But First Mondays keeps on working even when the justices are taking a break. Professors Dan Epps and Leah Litman catch you up on the court’s latest opinions; review the big batch of cert grants, as well as the high-profile petitions the court hasn’t (yet) granted; and play a few fun clips from last week’s arguments. That’s not all—listen to hear us discuss an interesting recent piece by Professor Daniel He...
Tags: Supreme Court, Law, United States, Ruth Bader Ginsburg, Leah, U S Court of Appeals, Daniel Hemel, Leah Litman, Neil Gorsuch, Dan Epps, First Mondays, Stokeling, Rehaif


All We Did Was Survive: The State of the Pro-Life Movement Under President Trump

ABSTRACT: The pro-life movement in America seemed in dire straits in 2016, with losses on almost every front. Donald Trump’s surprising win appears to have stalled the abortion juggernaut. An escape, however, is not a triumph. Dunkirk was not Normandy. Abortion is here to stay as long as millions of young Christians are uninformed, unequipped, and unconcerned. We asked Scott Klusendorf, president of Life Training Institute, to give a state of the movement on the pro-life cause under t...
Tags: Google, Europe, Christopher Nolan, New York, Supreme Court, California, Washington, Religion, America, Dnc, Pennsylvania, Normandy, Aclu, New York Times, Winston Churchill, Manhattan


Friday round-up

Yesterday, the challengers in Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over discovery in a challenge to the government’s decision to add a question about citizenship to the 2020 census, asked the justices to dismiss the case, arguing that a district court decision earlier this week that barred the government from adding the question has rendered the Supreme Court case moot. Amy Howe has this blog’s coverage, which first appeared at Howe on th...
Tags: Supreme Court, Law, East Coast, Round-up, Reuters, U S Supreme Court, Lawrence Hurley, Howe, Adam Feldman, Department of Commerce, Andrew Chung, Heritage Foundation, Amy Howe, Ross Guberman, National Law Journal, Tony Mauro


Empirical SCOTUS: If Ginsburg leaves, it could be the liberals’ biggest loss yet – A look back at previous justices replaced with more conservative successors

The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the cour...
Tags: Health, Supreme Court, Law, Obama, Planned Parenthood, Washington Post, Kentucky, White House, Politico, Barack Obama, Indiana, Austin, United States, Kansas, Donald Trump, Ruth Bader Ginsburg


Reargument analysis: Justices seek a “middle position” in takings litigation case

During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversi...
Tags: Featured, Law, Congress, San Francisco, Pennsylvania, United States, Francisco, Sachs, Sonia Sotomayor, John Roberts, Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan


Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail lice...
Tags: Amazon, Utah, Featured, Supreme Court, Law, Tennessee, Nashville, Ruth Bader Ginsburg, Memphis, Wilson, Sonia Sotomayor, John Roberts, Phillips, Blair, Howe, Alito


Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires...
Tags: Featured, Supreme Court, Law, Congress, Medicare, Ruth Bader Ginsburg, National Labor Relations Board, Shah, Thomas, Sonia Sotomayor, APA, HHS, D C Circuit, Department of Health and Human Services, Sotomayor, Bowen


Morning Docket: 01.16.19

* Neil Gorsuch wrote an opinion in favor of labor rights and against mandatory arbitration. Yes, that Neil Gorsuch. [Slate] * The Trump Administration takes an L: S.D.N.Y. judge rules they can't ask citizenship questions in the census. [New York Law Journal] * Federal courts are now intending to squeak by on funding through January 25th. This is the second extension the Office of Court Administration has been able to muster due to aggressive cost cutting. [National Law Journal] * Kirsten Gill...
Tags: New York, Law, Boston, Npr, Kirsten Gillibrand, Courthouse News Service, Susan Berman, Robert Durst, Beantown, National Law Journal, Davis Polk, American Lawyer, New York Law Journal, Morning Docket, Office of Court Administration, Trump Administration


Wednesday round-up

This morning the Supreme Court wraps up its January session with oral arguments in two cases. First on the agenda is a reargument in Knick v. Township of Scott, Pennsylvania, which asks whether the court should reconsider a precedent that requires property owners to exhaust state remedies before bringing federal takings claims under the Constitution. Miriam Seifter had this blog’s preview. Isaac Syed and Yuexin Angela Zhu preview the case for Cornell Law School’s Legal Information Institute. The...
Tags: Supreme Court, Law, Kentucky, Court, United States, Tennessee, Faa, Round-up, TVA, U S Supreme Court, John Roberts, Mark Joseph Stern, Blair, Howe, Ian Millhiser, Samuel Alito


Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents

Arbitration month at the Supreme Court continued this morning with the unanimous decision in New Prime Inc. v. Oliveira – following by a single week the unanimous decision in Henry Schein v. Archer & White Sales. New Prime, though, is anything but business as usual: Justice Neil Gorsuch’s opinion for a unanimous court rejects a claim for arbitration for the first time in a string of more than a dozen of the Supreme Court’s cases stretching back more than a decade. Indeed, I doubt the court has r...
Tags: Featured, Supreme `` Court, Law, Congress, United States, Ruth Bader Ginsburg, Thomas, Henry Schein, John Roberts, Ginsburg, Kavanaugh, INS, Oliveira, Gorsuch, Merits Cases, Chadha


Judge Keeps An Eye On SCOTUS As He Blocks Census Citizenship Question

U.S. District Judge Jesse Furman found himself in an extraordinary position as he handed down a decision Tuesday declaring illegal the Trump administration’s move to add a citizenship question to the census. As trial in the case was wrapping up in November, the Supreme Court announced it would hear arguments on a dispute in the case in February. More remarkable, still, is that the dispute — over a judge’s order the Commerce Secretary Wilbur Ross, who made the decision to add the question, sit...
Tags: News, Maryland, Supreme Court, Commerce, Doj, Justice Department, Ross, Trump, Fed, Wolf, Tierney Sneed, Levitt, Loyola Law School, Fishkin, Common Cause, Jesse Furman


Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity. Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Li...
Tags: Featured, Supreme Court, Law, Congress, United States, Adams, Sonia Sotomayor, TVA, John Roberts, Roberts, Alito, Rouse, Tennessee River, Sotomayor, Stephen Breyer, Breyer


Judge bars Trump administration’s citizenship question from 2020 Census

By LARRY NEUMEISTER | Associated Press NEW YORK — The Trump administration cannot put a question about citizenship status on the 2020 census, a federal judge in New York ruled Friday in a boost to proponents of counting immigrants. In a 277-page decision that won’t be the final word on the issue, U.S. District Judge Jesse Furman ruled that while such a question would be constitutional, Commerce Secretary Wilbur Ross had moved to add it to the census arbitrarily and had not followed proper admini...
Tags: Politics, New York, News, Supreme Court, Congress, California, White House, San Francisco, Sport, Soccer, Commerce, Associated Press, Donald Trump, Justice Department, Ross, Trump


Judge Finds That Trump Move To Add Census Citizenship Question Is Illegal

A federal judge on Tuesday blocked the Trump administration’s plan to add a citizenship question to the 2020 census, with an opinion that found the move by Commerce Secretary Wilbur Ross violated the Administrative Procedure Act. Furman’s decision, if not overturned by a higher court, is a monumental victory for voting rights activists and immigrant advocates, who feared the question would spook immigrant participation in the census. An undercount of those populations would shift political re...
Tags: News, Supreme Court, Congress, Court, Commerce, Aclu, Manhattan, Justice Department, Ross, Vra, Trump, Tierney Sneed, APA, Census Bureau, Jesse Furman, Furman


Lindsey Graham ‘hell-bent’ on replacing Ruth Bader Ginsburg despite Supreme Court saying she is 'cancer free'

Supreme Court Justice Ruth Bader Ginsburg has said she doesn't plan on retiring before the presidential election in 2020 — but Republicans appear to have other ideas. Donald Trump’s White House and close allies have begun preparing for her replacement, with senior Republicans like Senator Lindsey Graham saying he will be “hell-bent” on replacing the notorious liberal justice with a conservative upon her departure — a move that could radically shift the balance of the court for decades. Despite...
Tags: News, Supreme Court, White House, Fox News, Donald Trump, Ruth Bader Ginsburg, South Carolina, Lindsey Graham, Neil Gorsuch


No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service...
Tags: Texas, Featured, Supreme Court, Law, Kentucky, New York City, Indiana, United States, Lgbtq, White, Trump, U S Supreme Court, Toshiba Corp, Moore, Michaels, Howe


Gorsuch Elected As Trustee Of The Colonial Williamsburg Foundation

WILLIAMSBURG, Va. (AP) — U.S. Supreme Court Justice Neil Gorsuch has been elected to serve as a trustee of the Colonial Williamsburg Foundation. Gorsuch was nominated to the high court by President Donald Trump and took his seat in April 2017. He previously served on the 10th U.S. Circuit Court of Appeals and at the U.S. Department of Justice as principal deputy associate attorney general. Colonial Williamsburg is the world’s largest living history museum. In a statement released by the founda...
Tags: News, Donald Trump, Williamsburg, U S Supreme Court, U S Department of Justice, Va AP, Anthony Kennedy, Colonial Williamsburg, 10th U S Circuit Court of Appeals, Gorsuch, Colonial Williamsburg Foundation, Neil Gorsuch, Retired Supreme Court, Summer Concepcion


Gorsuch named as trustee of Colonial Williamsburg Foundation

WILLIAMSBURG, Va. (AP) — U.S. Supreme Court Justice Neil Gorsuch has been elected to serve as a trustee of the Colonial Williamsburg Foundation. Gorsuch was nominated to the high court by President Donald Trump and took his seat in April 2017. He previously served on the 10th U.S. Circuit Court of Appeals and at the […]
Tags: News, Nation, Donald Trump, Williamsburg, U S Supreme Court, Va AP, 10th U S Circuit Court of Appeals, Gorsuch, Colonial Williamsburg Foundation, Neil Gorsuch


Relist Watch Returns

John Elwood reviews the first relists of 2019. Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be ...
Tags: Florida, Texas, Featured, Maryland, Supreme Court, Law, Congress, California, Planned Parenthood, Kentucky, Virginia, New York City, Freedom, Alabama, Indiana, United States


Argument analysis: The familiar yet fresh debate in Franchise Tax Board of California v. Hyatt

Federal courts aficionados have been looking forward to the oral argument in Franchise Tax Board of California v. Hyatt, and the event did not disappoint. The question was whether to overrule the decades-old precedent Nevada v. Hall, which held that states lack sovereign immunity in one another’s courts. The argument largely broke down according to familiar ideological lines, but the discussion still had verve and creativity, in part thanks to the performances of veteran advocates Seth Waxman an...
Tags: Featured, Supreme Court, Law, California, Nevada, Ruth Bader Ginsburg, Hall, Hyatt, Sachs, Sonia Sotomayor, John Roberts, Waxman, Alito, William Rehnquist, Sotomayor, Stephen Breyer


Reargument preview: A new theory of when local-government takings occur

Photo credit to Pacific Legal Foundation On Wednesday, for the second time this term, the court will hear argument in Knick v. Township of Scott. The case addresses when property owners who allege that a local government has taken their property can bring a lawsuit in federal court. A 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, requires such plaintiffs to first make use of the state’s compensation procedures; only then can they say whether their property h...
Tags: Featured, Supreme Court, Law, Congress, United States, Pacific Legal Foundation, Samuel Alito, Knick, Williamson County, Gorsuch, Merits Cases, Noel Francisco, Brett Kavanaugh, Williamson County Regional Planning Commission, Hamilton Bank, Neil Gorsuch


Argument analysis: Justices wade deep into the copyright weeds

Tuesday’s argument in Fourth Estate v. Wall-Street.com featured competing interpretations of the phrase “registration of the copyright claim has been made” in 17 U.S.C.§ 411(a), which requires copyright registration as a prerequisite for filing an infringement suit. Because much of the argument focused on niceties of textual interpretation, I’ll quote the language of the relevant subsection: [N]o civil action for infringement of the copyright in any United States work shall be instituted until p...
Tags: Featured, Supreme Court, Law, Congress, United States, Ruth Bader Ginsburg, Copyright Office, Sonia Sotomayor, John Roberts, Ellis, U S Court of Appeals, Elena Kagan, Kagan, Kavanaugh, 11th Circuit, Fourth Estate


Argument analysis: Gleaning the FDA’s meaning for impossibility pre-emption

Much of the federal government may be in shutdown mode, but the Supreme Court is still open for business. The Supreme Court opened its January session Monday morning with argument in Merck Sharp & Dohme Corp. v. Albrecht, a case about the workings of the Food & Drug Administration (still partially open) and when the agency’s actions may insulate drug manufacturers from state tort suits through “impossibility pre-emption.” An important and often-used litigation defense for manufacturers, impossib...
Tags: Featured, Supreme Court, Law, Merck, United States, Fda, Sonia Sotomayor, Stewart, John Roberts, Albrecht, Roberts, Ginsburg, Levine, Sotomayor, Stephen Breyer, Breyer


The justices return, without Ginsburg or any new grants (Updated)

[Editor’s Note: This post was updated to cover the four cases in which the Supreme Court asked the U.S. solicitor general to file briefs.] The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts. The justices issued...
Tags: Texas, Featured, Supreme Court, Law, Virginia, New York City, Court, Georgia, Indiana, United States, Citigroup, Argentina, Ohio, Atkins, Lgbtq, Ruth Bader Ginsburg


Argument preview: Immunity, precedent and federalism in Franchise Tax Board of California v. Hyatt

Franchise Tax Board of California v. Hyatt is the federal courts case that keeps on giving. It is a SCOTUS “threepeater,” having now reached the justices on three separate occasions. It raises a rich sovereign immunity issue — namely, whether states should enjoy immunity in one another’s courts. And it also asks the Supreme Court to overrule a precedent, Nevada v. Hall, that at least four justices were recently prepared to throw overboard. Whether new Justices Neil Gorsuch and Brett Kavanaugh f...
Tags: Featured, Supreme Court, Law, Congress, California, United States, Maine, Nevada, Hall, Kennedy, Hyatt, Sachs, Antonin Scalia, U S Supreme Court, Alden, William Rehnquist


Argument preview: Revisiting impossibility pre-emption

When state law and federal law conflict, the Constitution’s supremacy clause provides that federal law displaces, or pre-empts, state law. Pre-emption issues permeate prescription-drug safety litigation because the Food and Drug Administration regulates the safety and efficacy of prescription drugs under federal law, while state tort law provides the remedy for patients injured by the use of FDA-approved drugs.  Prescription drug manufacturers frequently raise “impossibility pre-emption” as a de...
Tags: Featured, Supreme Court, Law, Merck, United States, Food And Drug Administration, Fda, Antonin Scalia, PAS, Albrecht, U S Court of Appeals, Anthony Kennedy, Wyeth, 3rd Circuit, Merits Cases, Judicial Panel on Multidistrict Litigation


Empirical SCOTUS: 365 days of Trump and the Supreme Court

How better to wrap up the calendar year than by examining the president’s take on his relationship with the Supreme Court – especially because the court was one of President Donald Trump’s favorite topics of discussion this past year? These references ranged from the specific to the general and from praise to criticism. Many of the tropes are likely familiar. There was commentary on the Supreme Court vacancy after Justice Anthony Kennedy retired, more about Justice Brett Kavanaugh during the con...
Tags: Supreme Court, Law, Washington, America, Fox, South Dakota, Hawaii, Manhattan, Donald Trump, Chattanooga, Trump, Arlington National Cemetery, Brett, Houston Texas, United States Supreme Court, Anthony Kennedy


Ruth Bader Ginsburg Undergoes Surgery For Lung Cancer

U.S. Supreme Court Justice Ruth Bader Ginsburg was diagnosed with early stage lung cancer and underwent surgery Friday to remove one of the five lobes of her lung, a Supreme Court spokesperson announced. Physicians found the cancer by accident after the 85-year-old liberal justice fell and fractured three ribs in early November. She's being attended at the at Memorial Sloan Kettering hospital in New York.Ginsburg is a survivor of colon and pancreatic cancer. Doctors said she's likely to have a ...
Tags: Fashion, Music, Supreme Court, Washington, Arizona, Donald Trump, Ruth Bader Ginsburg, Trump, U S Supreme Court, Ginsburg, Ivanka, John Paul Stevens, Memorial Sloan Kettering, RBG, Brett Kavanaugh, Neil Gorsuch


Wednesday round-up

At NPR, Nina Totenberg reports that “[a] specially appointed federal panel of judges has dismissed all 83 ethics complaints brought against Justice Brett Kavanaugh regarding his conduct at his confirmation hearings,” “conclud[ing] that while the complaints ‘are serious,’ there is no existing authority that allows lower court judges to investigate or discipline Supreme Court justices.” Additional coverage comes from Kevin Daley at The Daily Caller, Joan Biskupic at CNN, Samuel Chamberlain at Fox ...
Tags: Supreme Court, Law, Washington Post, Npr, Usa Today, Donald Trump, Ruth Bader Ginsburg, Aba, Round-up, U S Supreme Court, Robert Barnes, Richard Wolf, Ginsburg, Nina Totenberg, Kavanaugh, Joan Biskupic


Immigration groups and Republican officials urge justices to deny stay in asylum case

Last week the Trump administration asked the Supreme Court to block a ruling by a federal judge in San Francisco in a challenge to a new U.S. policy on asylum, announced last month as thousands of migrants moved from Central America towards the U.S. border. The rule would prohibit immigrants who enter the United States illegally along the southern border from seeking asylum, but U.S. District Judge Jon Tigar barred the government from enforcing the rule, so the government asked the Supreme Court...
Tags: Featured, Supreme Court, Law, Congress, San Francisco, United States, State Department, Department Of Justice, Doj, Central Intelligence Agency, Central America, Federal Bureau of Investigation, Trump, Howe, U S Court of Appeals, Jon Tigar