Tuesday round-up

Today the court hears oral argument in Dean v. United States, in which the justices will consider whether mandatory statutory gun-sentencing provisions may limit a district court’s discretion under the advisory sentencing guidelines. Douglas Berman previewed the case for this blog. Dara Brown and Jaeeun Shin offer another preview at Cornell University Law School’s Legal Information Institute.

Yesterday, the court agreed to review three cases, denied review in a challenge to the constitutionality of the death penalty, over a dissent by Justice Stephen Breyer, and summarily affirmed a lower court judgment that rejected a First Amendment challenge to an FEC donor-disclosure requirement. Amy Howe covers yesterday’s orders for this blog. At his Election Law Blog, Rick Hasen weighs in on the election law case, Independence Institute v. Federal Election Commission, noting that although “the Court has been steadily whittling away and striking down campaign laws limiting contributions and spending in elections, it has held the line on the constitutionality of disclosure laws,” and that this decision constitutes a “small, but real, victory for those who support reasonable campaign finance regulation.”

The court also heard argument yesterday Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment. Amy Howe analyzes the argument for this blog. Additional coverage of comes from Mark Walsh at Education Week, who notes that the “lively argument” “touched on school websites, chat rooms, and President Donald Trump’s Twitter account,” and Nina Totenberg at NPR, who reports that “at least six justices indicated serious doubts about the statute” and that “Justice Samuel Alito was the only justice to voice skepticism about the importance of social media.” At the Constitutional Law Prof Blog, Ruthann Robson also discusses the argument, noting that “the Justices did not seem to accept” the “notion that internet social sites are ‘virtual places’ like playgrounds.”

Yesterday’s second argument was in Esquivel-Quintana v. Sessions, in which the justices will decide whether a state-law conviction of “sexual abuse of a minor” constitutes an “aggravated felony” under federal immigration law that requires the removal of a lawful permanent resident. Kevin Johnson has this blog‘s argument analysis.

In a Bloomberg BNA podcast, Kimberly Robinson and Patrick Gregory discuss the upcoming confirmation hearing for Judge Neil Gorsuch. At the Associated Press, Denise Lavoie and Michael Tarm report that Gorsuch’s “worker’s rights opinions are often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor,” noting that a “review of dozens of employment cases he heard in his decade on the U.S. 10th Circuit Court of Appeals reveals a focus on texts and a fondness for scrutinizing definitions of words in legislation and the Constitution” and that Gorsuch “has sided with employers 21 out of 23 times in disputes over the U.S. pensions and benefits law, the Employee Retirement Income Security Act, or ERISA.” In an op-ed in Forbes, Frances Bridges explains that Gorsuch’s originalist approach to constitutional law should worry millennials, who should find it “hard not to question the principles of someone who knowingly makes it harder for every population outside of his own to secure their civil rights.”

At ACSblog, Steve Sanders argues that, in light of the Trump administration’s revocation of prior guidance from the federal government that had interpreted a 1975 regulation to require schools to “treat transgender students consistent with their gender identity,” the court should dismiss Gloucester County School Board v. G.G., a challenge to a Virginia school board’s bathroom policy, because “Gavin Grimm’s achievement is too important – yet too fragile – to risk it becoming a vehicle for making bad law that could harm large numbers of transgender students now and in the future.” At Slate, Scott Skinner-Thompson takes another view, maintaining that “the Supreme Court can and should still decide the Grimm case and settle definitively that federal prohibitions on sex discrimination include discrimination against transgender people” and outlining the “human and legal reasons for the Court to move forward.” Also at Slate, Mark Joseph Stern calls out several “friends of the court” who filed briefs in the case for misidentifying the gender of the plaintiff in the case caption; he notes that the clerk of the Supreme Court “sent out letters reprimanding the groups that misgendered Grimm,” and he argues that the briefs should not be given “serious consideration,” because they “clearly reflect the kind of animus that moved the school board to bar Grimm from the correct bathroom in the first place.”

The World and Everything in It (podcast) features a discussion of last week’s oral argument in Hernández v. Mesa, a case that stems from the fatal cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent. Other comments on the argument in Hernández come in two posts at Prawsfblawg from Howard Wasserman, here and here. At Truthdig, Bill Blum observes that “even before the original travel ban was announced on Jan. 27, the Supreme Court had loaded up its current docket with cases that will have profound consequences for Trump’s … plans to secure and militarize the border and fulfill his campaign promises of mass deportations”; he examines two of those cases – Hernández and Jennings v. Rodriguez, a class-action due-process challenge to the prolonged detention of immigrants.


  • At his eponymous blog, William Goren looks at last week’s decision in Fry v. Napoleon Community Schools, in which the court ruled in favor of a family seeking to challenge in federal court a school district’s refusal to allow a disabled child to bring her service dog to school, noting that the “decision is a big win for students with disabilities, but it is going to make the life of lawyers representing students with disabilities much more complicated.”
  • At Empirical SCOTUS, Adam Feldman tests the theory that the U.S. Court of Appeals for the 9th Circuit is reversed more often than any other federal appeals court, concluding that when “accounting for cases that are reversed or vacated (and/or remanded) the circuit with the highest overturn rate is the Sixth Circuit,” and that although “the Ninth Circuit has the second greatest percentage of cases overturned of the federal courts of appeals at 79%, there are three other courts with over 70% overturn rates.”
  • At his Election Law Blog, Rick Hasen reports that the North Carolina legislature has objected to a request by the state’s governor and attorney general to withdraw the state’s request that the Supreme Court review an appeals court decision striking down the state’s strict voting law and that the legislature has asked to be added to the case as a petitioner; he points out that it is not clear “how SCOTUS will resolve a dispute as to who gets to speak for North Carolina.”

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