The Week Ahead – December 5, 2016

The Court will kick off this week by hearing oral arguments in Bethune-Hill v. Virginia Board of Elections on Monday. After the Virginia General Assembly redrew its legislative districts, the plaintiffs sued, alleging that race was a predominant factor in the redistricting. The Court will have to decide if Virginia’s political leaders unconstitutionally gerrymandered the districts to diminish the power of African American voters. The Washington Post discusses the history of the case, leading up to its arguments in front of the high court.

Additionally on Monday, the Court will hear a similar case, McCrory v. Harris. In McCrory, the Court will consider whether the district court was wrong in deciding that North Carolina did in fact redraw their legislative districts to decrease the power of African American voters and therefore violating the Equal Protection Clause. Check out PBS for further details.

On Tuesday, the Court will move away from issues involving politics and race and will hear arguments in Life Technologies Corp. v. Promega Corp. This case involves infringement and the meaning of a specific statute involving the manufacturing and supply of patented inventions used overseas. They will ultimately have to decide if making just one component of a multi-component invention from the U.S. for sale overseas makes the manufacture liable for infringement based on the worldwide sales of the invention. John Duffy of SCOTUSblog breaks down the arguments, here.

Finally, on Wednesday the Court will hear arguments in Czyzewski v. Jevic Holding Corp. The Court will have to decide whether bankruptcy courts can approve settlements providing for the distribution of assets in a manner inconsistent with the priorities set forth in the Bankruptcy Code. Jevic Transportation filed for bankruptcy and the settlement distributed assets to creditors that held lower priority than the truck drivers employed by Jevic. The drivers argue that this distribution violates the Bankruptcy Code. Daniel Bussel of SCOTUSblog discusses how Chapter 11 bankruptcy cases will be effected in the future based on various decisions the Court could make.

The Week Ahead – November 28, 2016

This week, the Supreme Court will hear arguments in three cases. On Monday the Court will hear arguments in Beckles v. United States. Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon. The presentence investigation found Beckles to be an armed career criminal. He also was considered a “career offender” under one of the guidelines’ provisions because guideline commentary declared possession of a sawed-off shotgun to be a crime of violence under Section 4B1.2(a)(2) of the sentencing guidelines. Last year, in Johnson v. United States,  the Supreme Court struck down the “residual clause” of the ACCA. The residual clause had said that any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another” is included among the category of “violent felonies.” The court ruled that the clause was unconstitutionally vague because it did not give ordinary people sufficient notice of what conduct the statute prohibits. Seven justices (Justice Kagan is recused) will decide three issues: is Johnson retroactively applicable to the guideline residual clause of the Armed Career Criminals Act (ACCA); is Johnson’s constitutional holding applicable to Section 4B1.2(a)(2) of the sentencing guidelines; and is possession of sawed-off shotgun a “crime of violence” under the guidelines after Johnson? The Daily Caller discusses how the case gives the court the opportunity to revisit the Auer Doctrine. Scotusblog also discusses the case in more detail, here.

The Court will hear arguments on Tuesday in Moore v. Texas, which presents the issue of whether it is constitutional to prohibit the use of current medical standards on intellectual disability in determining whether someone may be executed. In 1980, Moore, then 20 years old, robbed a supermarket with two other men. Moore was convicted of the shooting death of one of the store’s employees and sentenced to death. More than 30 years later, Moore was again sentenced to death, but a state trial court determined that Moore is intellectually disabled and cannot be executed. On appeal, the Texas Court of Criminal Appeals, using standards from 1992 rather than current standards, reversed, holding that Moore had not established that he was intellectually disabled. The Court will decide whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability when deciding whether someone may be executed. As ISCOTUSnow reported last week, Tim Shriver, Chairman of the Special Olympics, weighs in on the case in this Time opinion piece. And The Economist argues that the state’s ideas on which it bases its executions are “used nowhere else in America.” SCOTUSblog also has more information.

Wednesday the court will hear arguments in Jennings v. Rodriguez. The case presents the issue of whether immigrants must be guaranteed a bond hearing and possible release from custody. Alejandro Rodriguez, a class representative, is a lawful permanent resident of the United States. The U.S. government sought to remove him from the U.S. based on criminal convictions for possession of a controlled substance and “joyriding.” The government detained him for more than three years without a bond hearing. An immigration court later granted Rodriguez “cancellation of removal,” and he remains in the country. The justices will also have to decide: whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. Law 360 offers a glimpse at the attorney who will be arguing the case, Ahilan Arulanantham, who has recently won a McArthur Award. And SCOTUSblog has more information about the case.

Weekly Roundup – November 25, 2016

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The Court convened for their November 22 conference on Tuesday but did not announce which, if any, petitions have been granted certiorari.

Lara Bazelon of Slate discusses Chief Justice John Roberts role in a Court with one or more Trump nominees, hinting that Roberts might be a safeguard against an ideologically fueled rescission of landmark cases like Roe v. Wade and Obergefell v. Hodges. “As chief justice, he has a unique responsibility to safeguard the integrity of the third branch of government,” she writes. “If the Supreme Court devolves into an ideological mouthpiece, as overtly political as Congress and the White House, Robert’s decade-long advocacy for judicial restraint and respect for precedent will be read as cant. Roberts himself will be seen as a hypocrite who put his personal preferences above the rule of law. History will view him as a failure. And John Roberts does not intend to fail. He is keenly aware of his institutional role and he cares deeply about legacy—the court’s and his own.”

Amy Frost of SCOTUSBlog investigates whether a single district judge has the ability to issue a nationwide injunction against the federal government programs or regulations. Frost analyzes UCLA Law Professor Samuel L. Bray’s paper  “Multiple Chancellors: Reforming the National Injunction”, published November 6, 2016. She describes Bray’s argument that while nationwide injunctions do provide some benefits, such as reducing inconsistency in the administration of federal orders across jurisdictions, the overall effect is largely detrimental. Nationwide injunctions, for example, encourage forum-shopping and make it less likely that the Supreme Court will have the benefit of percolation — consideration of an issue by multiple lower courts.

Amy Howe of SCOTUSBlog provides an in-depth preview of Moore v. Texas, which will be argued on November 29. The defendant in this case, Bobby James Moore, was sentenced to death thirty years ago, but argues that because of his intellectual disability, it would be unconstitutional to execute him. Moore examines whether or not it is a violation of the Eighth Amendment to reject evidence demonstrating that Moore is intellectually disabled under current medical standards and not the standard to determine intellectual disability used in this case – one that was developed in 1992. Tim Shriver, chairman of the Special Olympics, weighs in on the ramifications of the outdated standard in an op-ed for Time, writing “[i]n this case, fiction and stigma [trump] science and the Constitution. Never mind that the Texas factors for determining intellectual disability are not used in any medical or clinical setting in the nation. In fact, they’re not even used elsewhere in Texas. In countless situations where the state is responsible for determining intellectual disability, it uses current scientific standards. The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.”

The Trump Presidency and the Supreme Court

What does a Trump Presidency hold in store for the Supreme Court? Answering this question requires considering two separate, albeit related, questions: (1) the impact of one or more Trump nominees on the Supreme Court, and (2) the possible legal challenges to policy Trump has endorsed that might end up in the Supreme Court. In this post, I’ll focus on the first question; in a subsequent post, I’ll look at the second.

One of the immediate implications of Trump’s victory is that President Obama nominee Merrick Garland’s hopes of getting on the Supreme Court are over. The seat left vacant by Justice Scalia’s death in February will remain open until the new President has an opportunity to make his own nomination. (Some have urged Obama to simply give Garland his seat based on the fact that the Senate’s refusal to hold hearings constitutes some sort of consent. But it is hard to imagine the current President seriously considering this constitutionally questionable path.) The Republican strategy of refusing to hold Senate hearings on the nominee until after the election worked. What looked a few weeks ago like a desperate stalling action that had run its course now looks like a high-stakes gamble that paid off.

Liberals are now urging Democrats to make a stand against whomever Trump nominates to the Court. Although some sort of stand will surely be made, it is hard to see how the Democrats can change the outcome. With a Republican-controlled Senate, Trump’s nominee will get a seat on the Court. Democrats will likely filibuster on Trump’s first Supreme Court nominee, which will just as likely result in the Republicans responding by revising its Senate rules and ending the filibuster for Supreme Court appointments.

The elimination of the filibuster will have effects on the Court for years to come. The predictable outcome of allowing the Supreme Court appointment process to operate with a simply majority requirement will be nominees whose ideological commitments place them somewhat further from the moderate middle—think more justices like Scalia and fewer like Roberts—at least when the same party controls both the White House and the Senate. Regardless of whether this is good or bad for the Court, it will allow Senators to extract more political advantage from the Supreme Court nomination process.

Who will a President Trump nominate to the Supreme Court? When it comes to Court nominees, Trump’s comments have been pretty standard Republican fare. During his campaign, Trump released a list of twenty-one people and said he would select his nominee from the list. The list, which Trump’s team compiled with the help of the Heritage Foundation and the Federalist Society, was filled with respected judicial conservatives, mostly judges on state supreme courts and federal courts. Trump has promised to appoint a justice who would overturn Roe v. Wade and protect gun rights. In a post-election interview, he reiterated his opposition to Roe and his commitment to appointing “very pro-Second Amendment” justices. For a candidate who defined himself by defying the Republican Party establishment, here he has seemed perfectly willing to fall in line.

If there is any space between Trump’s statements and Republican orthodoxy on Supreme Court appointments, it may be on the issue of gay rights. In the same interview in which he reiterated his opposition to Roe, he also said that he saw no reason to reverse the Supreme Court’s 2015 same-sex marriage decision, which he described as “settled” and “done,” adding that he was “fine with that.”

If Trump follows though on his campaign promise and puts a conservative on the Court who will carry on the legacy of Justice Scalia—and with a Republican-controlled Senate there is no reason to think he would not—then the new, post-Scalia Court will look very much like the old Scalia Court. The year or so of an eight-Justice Court will be a strange interlude, ahistorical footnote, its effects quickly erased. Those decisions in which Justice Kennedy sided with the liberals, such as affirmative action and abortion, will be safe for now. Those decisions that came down to a 4-4 split will likely be revisited in the near future. In this latter category, the 4-4 decision that will surely be revisited in the near future is the public sector labor unions case, Friedrichs v. California Teachers Association. The unions dodged a bullet when the Court split in the this case, thus allowing the Ninth Circuit decision, which went in favor of the unions, to stand.

The other major 4-4 split, United States v. Texas, will not be affected, since (a) it had the effect of keeping in place a lower-court ruling that was accepted by the Court’s conservatives (and would be approved by a new Trump justice, assumedly); and (b) it was a challenge to an Obama Administration immigration policy that Trump has pledged to reverse.

On the major hot-button issues, it is hard to see a single Trump nomination changing the direction of the Court. Even if the nominee wanted to go against Trump’s stated position and overturn the same-sex marriage decision, there would not be the votes to do so. There would still be only four justices to reverse course on affirmative action and abortion, both issues in which Justice Kennedy joined the liberals in major decisions last June.

But Trump may have an opportunity to appoint more than one justice to the Supreme Court. Some liberals had been urging Justice Ginsburg, who at 83 is the oldest member of the Court, to step down while Obama was still President, calls she pointedly rejected. Now the question is how much longer the she can continue to serve. The spectacle of the Ginsburg health watch will have an added element of reality-show drama, since it was Justice Ginsburg who made news over the summer by attacking Trump (who returned fire, of course) and then quickly backtracking and conceding that her comments were ill-advised.

And Justice Ginsburg is not the only member of the Court whose health will be of particular issue to Court watchers. If either of the next-oldest justices—Justice Breyer (78) and Justice Kennedy (80)—were to step down or be unable to continue to serve, the ideological configuration of the Court would be changed dramatically. If Justice Ginsburg or Breyer are replaced by a conservative justice, the Court will move to the right on many significant issues. If Justice Kennedy is replaced the rightward shift would be less pronounced but still potentially significant. On those issues on which Kennedy sided with the liberals (gay rights and, most recently, abortion rights and affirmative action) there will likely be some more conservative outcomes.

The Week Ahead – November 21, 2016

This week, the Supreme Court will not hear any oral arguments but will be holding Conference on November 22. SCOTUSblog discusses some of the petitions likely under consideration.

One interesting petition the Court is expected to review is Broom v. Ohio. This capital case from the Supreme Court of Ohio addresses the case of respondent Romell Broom, who was sentenced to death upon his conviction for murder in 1984. Ohio attempted to execute Broom in 2009 by lethal injection but the procedure failed when Ohio failed to follow its established execution protocol. Broom argues three constitutional violations: that the original attempt at execution constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment, that a future execution attempt would constitute cruel and unusual punishment, and that a second execution attempt would violate Fifth 14th  Amendment protection against double jeopardy. This case was originally scheduled for Conference on October 28, and it has been relisted several times, suggesting that at least some Justices are very interested in taking the case.

A second interesting petition is White v. Pauly, a case from the 10th circuit, which examines the qualified immunity rights of New Mexico State Police officers. In 2011, the officers shot and killed Samuel Pauly in his own home while responding to a road-rage incident involving Pauly’s brother Daniel. The Court is being asked to examine whether the 10th Circuit correctly denied qualified immunity to the officers, and whether the 10th Circuit came reached its conclusion by considering the issue at too high a level of generality instead of focusing on the specific facts of the case. The petitioner police officers argue that the 10th Circuit considered the validity of the use of force from the perspective of the Pauly brothers and not from the perspective of reasonable police officers.

Finally, in Stokes v. South Carolina, the Court examines whether the petitioner’s Sixth Amendment guarantee of conflict-free representation was violated. Sammie Louis Stokes was convicted of kidnapping, sexual assault, and murder, and was sentenced to death in 1999. Stokes argues that his Sixth Amendment right to conflict-free representation was violated when Thomas Sims was appointed to represent him in 1999. Sims prosecuted Stokes in 1991 in an unrelated assault and battery case. The case was originally scheduled for the October 28 Conference and has been relisted several times.

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Weekly Roundup – November 18, 2016

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

Despite not adding any new cases or hearing argument this week, the Court played a prominent role in the news. In an interview on 60 Minutes that aired on Sunday, President-Elect Trump declared he believes gay marriage rights are “settled.”  He indicated, however, that he would appoint pro-life justices to the Court who would reverse Roe v. Wade. As Joan Biskupic of CNN reports this is the first time since 1969 that a newly elected president will be able to fill a Supreme Court vacancy. President Nixon came into office with a vacancy left due to Chief Justice Earl Warren’s retirement. Before Congress even confirmed Nixon’s nominee for Chief Justice, Warren Burger, Associate Justice Abe Fortas resigned. Although the Senate confirmed Burger, it blocked President Nixon’s first two nominees to replace Fortas before confirming Justice Harry Blackmun.

The Hill reports that Senator Dianne Feinstein will become the senior Democrat on the Senate Judiciary Committee next year. She will be the first women to be a ranking member of the committee, and will have a prominent role in vetting any Supreme Court Justice nomination after the President-Elect takes office. She has stated that she will pay “close attention,” to anyone Trump nominates, suggesting that she is willing to battle his or her confirmation.

Justice Sotomayor was also in the news this week. When asked about the outcome of the election, she stated that the country “can’t afford to despair.” She reiterated that the current even number of justices is not “ideal,” but that they have been doing the best that they can to avoid split decisions, and have affirmed by an equally divided court in only four cases since the death of Justice Scalia. However, as ABC News reports, she went on to say that the Court functions better with nine justices, as they are able to come to a definite conclusion on issues.

Also this week, Justice Ginsburg put down her gavel for a bit and made her opera debut with the Washington National Opera recently. She played “The Duchess” in “The Daughter of the Regiment” on opening night. As NBC reports, Justice Ginsburg and the late Justice Scalia both shared a passion for the opera. Justice Ginsburg “tweaked” the lines for the performance to make them reflect her “day job.”

Chicago Tonight discussion on the Supreme Court under President Trump

Professor and ISCOTUS codirector Carolyn Shapiro appeared on Chicago Tonight last evening, with other panelists, to discuss the future of the Supreme Court under President Trump. The panelists agreed that filling Justice Scalia’s seat is unlikely to lead to much change in the Court’s ideological balance.  But even with additional nominations, Shapiro  is “skeptical that we’d see outright reversal” of “hot-button” SCOTUS decisions like Roe v. Wade, explaining that “the Court, itself, has institutional reasons not to want to reverse a precedent that — even if controversial — is 40 plus years old, that has in a lot of ways stood the test of time even though it has been changed and cut back on.” Watch the full panel discussion at http://bit.ly/2eYbWh8.

The Week Ahead – November 14, 2016

The Supreme Court’s scheduled activity this week consists of orders from its November 10 conference, issued on Monday, November 14. The Court did not add any new cases to its docket. It did not act on a number of cases that had been relisted, suggesting that those cases are still under consideration, that the Court is considering a per curiam opinion, or that a justice is writing a dissent from the denial of certiorari.

In other Supreme Court news, speculation continues as to what a Supreme Court under a Trump Administration would look like. The Wall Street Journal suggested that the Court’s docket may well change, as President-Elect Trump will be filling Justice Scalia’s vacant seat, ridding the Court of its current deadlock due to the even liberal-conservative divide. Adam Liptak of the New York Times discussed Trump’s “final list” of potential SCOTUS appointees he released in September. Liptak notes, “Mr. Trump’s candidates represent a sharp break from current conservative justices, who all went to law school at Harvard or Yale and who all served on federal appeals courts in the Northeast or in California.” Jeffrey Rosen of Politico discusses how a Trump presidency is likely to reshape both the Supreme Court and the country. He explains that “Trump’s appointee might be more willing to enforce limits on congressional and presidential power than Scalia himself.” Finally, Richard Wolf of USA Today discusses the effect Trump may have on appeals courts, noting that while the Supreme Court hears about 75 cases each term, the appeals courts hear closer to 30,000.

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This Day in Supreme Court History—November 12, 1975

On this day in 1975, Justice William O. Douglas retired. Appointed in 1939, Douglas’s thirty-six years on the Supreme Court made him the longest serving justice in U.S. history.

The brilliant, irascible, and often controversial justice grew up in Yakima, Washington. After graduating from Columbia Law School in 1925, he briefly practiced law before joining the law school faculty at Columbia and then Yale. In 1936 he left Yale to serve on the newly formed Securities and Exchange Commision; a year later he became SEC chairman. Franklin Roosevelt appointed Douglas to the Supreme Court in 1939. At age 40, he was the second-youngest person ever appointed to the Court.

Douglas stood out on the Court for his aggressive defense of civil liberties. Along with Justice Hugo Black, he insisted–usually in dissent–that anti-communist policies of the McCarthy Era violated the First Amendment. He wrote the opinion for the Court in Griswold v. Connecticut, which struck down a statute prohibiting the use of contraception as a violation of a constitutionally recognized right to privacy. (Douglas famously located the right to privacy in the “penumbras” and “emanations” of the Bill of Rights.)

His written opinions tended to brisk and bracing. He showed little patience or interest in the careful parsing of doctrine. He painted with broad, bold brushstrokes. His critics derided his style as a failure of judicial craft–and even his supporters often wished he would make more of an effort with the legal reasoning of his opinions. He could write stirring prose when he was moved to do so. “A function of free speech under our system of government is to invite dispute,” he wrote in Terminiello v. Chicago (1949). “It may indeed best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.”

Douglas’s final years on the Court were difficult. His relations with his colleagues, which were never smooth, grew increasingly strained. In 1974 he suffered a stroke, which left him partially paralyzed. The other justices finally had to persuade him to step down. President Gerald Ford then filled his seat with John Paul Stevens. Douglas lived for five more years after leaving the bench. He died in 1980 at the age of 81.

Weekly Roundup – November 11, 2016

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Commentary about the effect of the election on the Court has begun. Linda Greenhouse of the New York Times discusses the possible repercussions on the Supreme Court, including a discussion of the 21 possible nominees that Trump’s campaign issued in September. Emily Bazelon of the New York Times also weighs in on the issue describing the Republican approach to nominations to the Court as “a new kind of hardball.”

The Court also heard argument in four cases this week. On Monday, the question before the Court in NLRB v. SW General was the scope of a provision that bars the president from nominating someone who is serving in an acting capacity to fill the job on a permanent basis unless the acting official also served as the first assistant to the vacant position for at least 90 days in the year before the job became vacant. The provision makes it more difficult for the president to evade the confirmation process for his appointees. The question here involves the scope of the provision. SW General, the respondent here, is arguing for broader scope, invalidating the appointment of the current acting general counsel of the National Labor Relations Board. Justice Anthony Kennedy told Shay Dvoretzky, who represents SW General, that that he had a “very strong” argument based on the text: the reference by the provision at issue to “a person” who serves in an acting capacity “under this section,” e to be acting appointeeswhich could be construed as applying the restriction on nominating someone who is serving in an acting role to all categories of individuals who are eligible, but overall the justices seemed divided. Lydia Wheeler of The Hill discusses other highlights from Monday’s arguments.

On Tuesday, the Court heard arguments in Bank of America v. Miami and Wells Fargo v. Miami, which are consolidated. The case presents the issue of whether Congress required that a Fair Housing Act plaintiff plead more than just injury-in-fact when it limited lawsuits to “aggrieved person(s)”; and whether proximate cause requires more than the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through a chain of contingencies. Attorney Neal Katyal, representing the banks, told the justices Tuesday that a ruling for the cities would create an “unlimited theory of liability.” Not only could thousands of cities bring similar lawsuits, he said, but many other plaintiffs, including landlords, could also bring lawsuits. Amy Howe of SCOTUSblog discusses the arguments further in her argument analysis. And ABC News notes that “some of the justices said they worried about opening the courthouse door to shop owners, gardeners and other companies that might lose business as a result of home foreclosures.”

Also on Tuesday, the Court heard Lightfoot v. Cendant Mortgage Corp. The issue in the case is whether a lawsuit has federal jurisdiction merely because the Federal National Mortgage Association, also known as Fannie Mae, is a party. Early in the presentation of Joshua Rosenkranz on behalf Monique Lightfoot, the plaintiff suing Fannie Mae, Justice Ruth Bader Ginsburg read a passage from the opinion in American National Red Cross v. S.G. & A.E. that, in her view, “seems to say if you authorize suit in federal court, that’s it. Specifically mentioning federal court suffices to confer federal jurisdiction.” SCOTUSblog breaks down the arguments on either side, here.

The Court heard its final arguments of the week on Wednesday in Lynch v. Morales-Santana. The court must decide whether Congress’s decision to impose differing gender-based physical-presence (in the United States) requirements on citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection. More specifically, the challenged law grants citizenship to the child who is born abroad to an unmarried US citizen mother if the mother lived in the United States for one continuous year, while a child born abroad with an unmarried US citizen father receives citizenship only if the father lived in the United States for at least ten years — five of them after the age of 14. The Court previously considered this question but split 4-4 (with Justice Kagan recused) in Flores-Villar v. United States. Because even without Justice Kagan, there were four votes in favor of finding the differential treatment unconstitutional, it is likely that there will now be five votes for that position.

In this week’s argument, Deputy Solicitor General Edwin Kneedler, arguing on behalf of the United States, said that the different treatment of unmarried mothers and fathers served two interests: ensuring that U.S. citizens have sufficient ties to the United States and avoiding a scenario in which the children of U.S.-citizen mothers are born “stateless” – meaning, with no citizenship at all. Justice Sonia Sotomayor asked Kneedler why unmarried U.S.-citizen fathers would have less of a connection to the United States than unmarried mothers. And Justice Elena Kagan asked him why the government couldn’t achieve those goals using “entirely gender-neutral language” that would apply to both unmarried fathers and unmarried mothers. Scott Michelman of Slate.com explains how this case “provides a small but meaningful snapshot of how sex-based laws written in that very era [1950s] are viewed by the branch of government most likely to provide a check on the new president’s power.” As SCOTUSblog points out, the key precedents at issue here are from cases argued by Ruth Bader Ginsburg herself. The case also requires the Court to consider the appropriate remedy if it does find the statute unconstitutional.

Finally, in other Supreme Court news, on Monday, the Court denied certiorari in OXY USA Inc. v. Schell. This case analyzes whether the fact that a pending appeal “played no significant role” in an appellant’s voluntarily mooting a case, Alvarez v. Smith, is the only factor in determining whether to vacate a lower court’s judgment or whether a party must make an additional showing of compelling circumstances favoring vacatur.