Monday round-up

Today, the court will hear oral argument in Beckles v. United States, which asks whether the residual clause of the sentencing guidelines is unconstitutionally vague. Nora Demleitner previewed the case for this blog. Another preview comes from Kara Goad and Elizabeth Sullivan for Cornell University Law School’s Legal Information Institute. George Washington Law Review’s On the Docket previews all the cases in the December sitting.

In The Economist, Steven Mazie looks at Moore v. Texas, a case on tomorrow’s argument schedule that asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed; Mazie observes that in “a shifting political climate where respect for scientific consensus is no longer a sure bet, Texas maintains that it can choose from a range of standards for intellectual disability, including one drawn from the pages of a novel.” Another look at Moore comes from Lawrence Gostin in ACSblog, who notes that “Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases.”

At Fox News, Bill Mears reports that a “post-election focus on the high court vacancy has now started to coalesce” among Donald Trump’s transition team, noting that “no one has yet emerged publicly as a favorite.” In Bloomberg Law, Patrick Gregory looks at the record of Judge Raymond Kethledge, who is on Trump’s list of potential Supreme Court nominees, noting that Trump and Kethledge “have something in common — blunt opinions.” At SSRN, Jeremy Kidd and others assign a “Scalia Index Score” to each of the names on Trump’s list, providing “a metric for determining just how Scalia-like they are”; Judges William Pryor and Neil Gorsuch, who serve on federal courts of appeals, and Justice Thomas Lee of the Utah Supreme Court scored highest on the Scalia index. And in the Associated Press, Mark Sherman remarks on the relationship between Trump and Chief Justice John Roberts, noting that although the president-elect “had harsh words for the leader of the federal judiciary” during the campaign, “Trump could need Roberts’ vote on matters ranging from immigration to health care to environmental regulations.”

Briefly:

  • In Forbes, Robb Mandelbaum discusses a pending cert petition in Impression Products, Inc. v. Lexmark International, Inc., a case asking “whether Lexmark can use a customer license to block a remanufacturer like Impression from buying and refurbishing used Lexmark toner cartridges” that “would require the Supreme Court to choose between two competing views of patent rights.”
  • At In a Crowded Theater, Erica Goldberg takes another look at Lee v. Tam, a First Amendment challenge to the government’s refusal to trademark a disparaging name, exploring “the difficult issue of how much control the government can constitutionally exercise over speech, especially speech that many find offensive, to which the government extends legal benefits.”
  • In her column in The New York Times, Linda Greenhouse argues that Trump’s observation that overturning Roe v. Wade would send the question of abortion “’back to the states,’” and his “evident approval of such an outcome,” resonates “with a dark period of Supreme Court history, when ‘separate but equal’ was the law of the land.”
  • In advance of Wednesday’s oral argument in Jennings v. Rodriguez, a class-action due-process challenge to the prolonged detention of immigrants, the Brooklyn Defender Service and the Immigrant Rights Clinic at New York University School of Law have produced a video recounting the experience of Alex Lora, who challenged his immigration detention in New York; they note that for “Mr. Lora and others in the Second Circuit, bond hearings have provided a critical procedural protection to prevent harmful and needless long-term detention.”

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