All posts by Professor Carolyn Shapiro

Gaming Out the Nuclear Option

Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Today, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I’m not alone in thinking about unintended consequences here. Nate Silver of has an extensive piece today about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

In contrast, the Democratic nominees during this timeframe – Ginsburg, Breyer, Sotomayor, and Kagan – were all seen as varying degrees of moderate liberal at the time they were nominated. You don’t have to take my word for this. Relying on data from the venerable Supreme Court Compendium, University of Chicago Law Professor Geoffrey Stone has ranked the nominees (through Kagan) by perceived intensity of ideology at the time of nomination. Except for Souter and Kennedy, all Republican nominees in the past 35 years have more intense ideological preferences than all Democratic nominees in the same timeframe.

And nominating a moderate did not help President Obama in the fight over the vacancy left by Justice Scalia’s death. President Obama’s pick, Judge Merrick Garland, was anything but an extreme nominee. Indeed, only a week before his nomination, Senator Orrin Hatch predicted that Obama would not nominate Garland, whom Hatch had previously praised as worthy of bipartisan support, because he was too moderate, and some progressive groups were disappointed by the nomination. Given that context, the Republican refusal to even consider Garland was and remains particularly infuriating to Democrats. As a result, one lesson Democrats might reasonably draw from the Garland nomination is that there is no Democratic nominee moderate enough (or old enough – Garland was in his 60s, quite old for a lifetime appointment) to be confirmed by a Republican Senate.[1] This lesson may resonate all the more because the Garland nomination was the first since before Brown v. Board of Education was decided in 1954 in which a Democratic president’s nominee was made to a Republican-controlled Senate. In other words, there is no history of a Republican-controlled Senate confirming moderate Democratic nominees.

Contrast this Republican treatment of Garland to the treatment Democratic- controlled Senates have given Republican SCOTUS nominees. Since 1954, Democratic Senates have confirmed numerous Republican appointees, including the conservative Burger, Rehnquist (when appointed as Associate Justice), Kennedy, and Thomas. Democratic Senates also confirmed Souter, Stevens, Powell, Blackmun, and President Eisenhower’s four post-­Brown nominees. That’s twelve confirmations. And until today, the Democrats have never filibustered a Republican nominee. Republicans like to complain about Bork, who was narrowly defeated by a Democratic Senate. But as this list makes clear, Bork’s defeat was unusual. And it happened because he was himself unusual in his extreme positions and rigid readings of the Constitution.

Finally, it’s worth noting just how rare Democratic Supreme Court appointees have been in the last half-century. In 1967, President Johnson successfully nominated Thurgood Marshall to the Supreme Court. No justice was nominated by a Democratic president for another 26 years, until President Clinton nominated Justice Ginsburg in 1993, followed by Justice Breyer in 1994. The most recent two Justices to join the Court – Justices Sotomayor and Kagan – were appointed by President Obama. That is it – five appointments in 50 years. In contrast, during the same time period, Republican presidents successfully appointed eleven Justices and additionally successfully elevated Rehnquist from Associate to Chief Justice.[2] With the pending confirmation of Justice Gorsuch, the Republican tally will increase to twelve – with Democrats still steaming over the treatment of Garland.

The point here is that despite Republican complaints that Democrats have been waging “scorched-earth ideological wars” over judicial nominees, at least during the past 35 years, Republicans have been more aggressive in trying to appoint ideologically extreme Supreme Court justices. Pushing such appointments – and eliminating the filibuster to get the latest one through – while refusing to even consider a moderate nominee by President Obama removes many of the incentives for Democrats to nominate moderates when they control both the Senate and the Presidency. When it comes to selecting new members of the Supreme Court, we should expect future Democratic presidents and Democratic-controlled Senates to act more like Republicans have been acting, resulting in more liberal appointments. (It also may, for the first time, lead Democratic voters to focus as much on the Supreme Court as Republican voters do, although this may be wishful thinking.) But the bottom line is that in the long run, Republicans may live to regret the nuclear option.

[1] There are of course other factors here. The fact that a Democratic nominee to replace Scalia would have a dramatic effect on the overall ideological balance of the Court surely played a role in encouraging Republican opposition. And Republicans also argue, for example, that some Democrats had themselves proposed a moratorium on SCOTUS nominations during a presidential election season.

[2] The Republican-appointed justices are Burger, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts, and Alito. We can also go back to Brown, since that is a timeframe I use elsewhere in this post. Since Brown, and not including Gorsuch, Republican presidents have successfully nominated fifteen justices, and Democrats have successfully nominated eight. The additional Republican appointees are Harlan, Brennan, Whittaker, and Stewart, while the Democratic appointees are White, Goldberg and Fortas.

The Week Ahead – January 23, 2017

The Court is not scheduled to hear any arguments this week and is in recess until February 17. Nonetheless, this morning it issued orders from last week’s Conference. (Grants were announced last week, and we discussed them here.) The most notable news from this morning’s Orders List is that the Court declined Texas’s request to hear the Texas voter-ID case, Abbott v. Veasey, in which the lower courts found that the voter-ID law violated the Voting Rights Act. The case will now proceed to trial, and as Amy Howe at SCOTUSblog explains, Chief Justice Roberts issued a statement respecting the denial of certiorari — an unusual move — in which he emphasized that the case could come back to the Court post-trial to present the same or similar legal questions. Specifically, he explained that the petitioners were asking the Court to review the lower courts’ findings that Texas had “enacted [the law] with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2 [of the Voting Rights Act.. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.” More information about the case is available at the SCOTUSblog post and the Campaign Legal Center website.

Despite the Court recess, Court-related news and commentary is likely to continue to be relatively heavy, as anticipation builds over Trump’s possible SCOTUS nominee. CNN reports that Trump said in a press conference January 11 that he would likely name his nominee within two weeks of taking the presidential office, so the announcement could be coming soon.

CBS reporter Jan Crawford revealed on Face the Nation on Christmas day that Trump had narrowed his list of possible nominees to five, whom she called “conservative legal rock stars:” Bill Pryor an Atlanta Federal Appeals Court judge; Thomas Hardiman, a judge on the Philadelphia based Appeals Court; Steve Colloton, an Iowa-based judge on the eighth circuit of the U.S. Court of Appeals; Diane Sykes, a judge on the Seventh Circuit. And Joan Larsen, from the Michigan Supreme Court. The Senate confirmation hearings will be a “battle over ideology,” not qualifications, because all of those on the shortlist are highly qualified, she said.

David Lat at Above the Law predicts Sykes will be the nominee. He argues Sykes and Pryor are the two real contenders because, among other reasons, “[t]hey are conservative in terms of methodology, emphasizing Justice Scalia’s themes of textualism, originalism, and judicial restraint. Not surprisingly, they are active in the Federalist Society, aka the legal profession’s vast right-wing conspiracy.” He goes on to say that Sykes has an advantage over Pryor in securing Trump’s nomination because she is an attractive woman, noting that she was nominated for “Superhottie” of the Federal Judiciary in 2004.

In a post-inauguration piece, ABC News profiles those purportedly under consideration (including Sykes and Pryor). In the meantime, Senate Minority Leader Chuck Schumer announced on CNN that the Democrats will “do our best to keep the seat open” if Trump appoints someone who is “out of the mainstream” and cannot attract “bipartisan support.” Majority Leader Mitch McConnell has threatened to invoke the nuclear option — to eliminate the filibuster for Supreme Court nominees — if the Democrats, who do not command a majority in the Senate attempt to filibuster Trump’s nomination. In any event, whomever Trump nominates will be supported by a large, well-funded network, according to the Washington Times. That newspaper reports that a conservative network of activists is launching a $10 million campaign to support the nominee.


Weekly Roundup – January 20, 2017

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The Supreme Court had only two days of argument this week and an unusual schedule. In addition to observing Martin Luther King, Jr Day on Monday, the Court held its Conference on Thursday rather than Friday due to Inauguration Day, when Chief Justice Roberts swore in Donald Trump as the 45th President of the United States. In honor of the occasion, Tony Mauro of provides a run-down of memorable Supreme Court moments from previous inaugurations.

On Tuesday, the Court heard arguments in Lynch v. Dimaya and Midland Funding, LLC v. Johnson. Lynch concerns part of the Immigration and Nationality Act (INA), which authorizes the deportation of any non-citizen convicted of an aggravated felony. The issue in Lynch is whether or not the INA definition of an “aggravated felony” is unconstitutionally vague. This case involves a constitutional challenge generally brought to criminal statutes, and immigration law has typically been evaluated differently. In a 1951 case, however, the Court considered a similar challenge to an immigration law. Kevin Johnson of SCOTUSBlog analyzed the argument. Johnson observed that while the justices might not agree that the particular statute is unconstitutionally vague, the Court seemed unlikely to reject the possibility that this challenge to immigration law could ever be brought.

Midland Funding, LLC questions whether it is a violation of the Fair Debt Collection Practices Act for a collection agency to file a proof of claim for an unpaid debt after the statute of limitations on the debt has expired. It also addresses whether the U.S. Bankruptcy Code authorizes a creditor to file proof of claim despite the statute of limitations. Diane Davis of Bloomberg BNA provides a summary of the argument.

On Wednesday, the Court heard arguments in Lee v. Tam and Ziglar v. Abbasi. Lee concerns a provision of the Lanham Act that bans the registration of trademarks determined to be “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Patent and Trademark Office cited this provision when it denied the Asian-American band, “The Slants,” the trademark of their band name. Sarah Jeong of the New York Times provided an in-depth look at how Lee arrived at the Supreme Court, published the day before the argument. Jeong describes how Simon Tam decided to name his band “The Slants” in order to reclaim a stigmatizing label often associated with Asian-Americans. Jeong writes, “On Jan. 18, Tam’s lawyers will be facing down Lee’s lawyers before eight justices, none of whom are Asian, to decide the fate of the Slants and whether trademark law can accommodate ‘taking a word back.’” The Economist provides a description of the argument — and the justices’ apparent skepticism of the law.

Ziglar is a consolidation of three cases brought by a group of Muslim men detained following the terrorist attacks of September 11, 2001. The former detainees argue that their Constitutional rights were violated during their detention and seek to hold specific government officials individually liable. The issues in the case largely revolve around the scope of the government officials’ immunity. The Washington Post reports on the argument, and adds that “[h]uman rights and immigrant advocates say the outcome of the case is even more significant with the inauguration Friday of ­President-elect Donald Trump.” The arguments were heard by a six-justice court, as Justices Sotomayor and Kagan were recused.

Also on Wednesday, the Court issued the only opinion of the week in Lightfoot v. Cendant Mortgage Corporation. Justice Sotomayor delivered the unanimous decision, which examined whether or not the language “to sue or be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal” in the federal charter of the Federal National Mortgage Association (Fannie Mae) granted jurisdiction in federal court in any case in which Fannie Mae is a party. The Court concluded that this clause did not confer federal courts jurisdiction in all such cases. Ronald Mann of SCOTUSBlog provides an analysis of the opinion, arguing that the “decision in this case should surprise no one” because of the Court’s fear that accepting the clause in the charter would lead to an explosion of cases introduced to federal court.

On Thursday, the Court met for Conference and granted cert in two cases: District of Columbia v. Wesby, a case examining Fourth Amendment probable cause concerns and the qualified immunity of police officers. And Bristol-Myers Squibb v. Superior Court of California, San Francisco County, a case concerning the standard for determining  when a state court has “specific jurisdiction” in a lawsuit. Amy Howe of SCOTUSBlog provides a review of these cases, which could potentially be argued in April, with a new justice on the bench.

The Week Ahead – January 16, 2017

The Court has another busy week ahead. Over the course of Tuesday and Wednesday, the Court will hear arguments in four cases, issue orders from its January 17 conference, and possibly hand down opinions. Come Thursday, the Court will meet for conference. The Court did not sit on Monday, January 16, the federal holiday honoring Dr. Martin Luther King, Jr.

On Tuesday, the Court will hear arguments in Lynch v. Dimaya and Midland Funding, LLC v. Johnson. Lynch addresses the Immigration and Nationality Act and its power to govern removal of illegal aliens. The Court must analyze whether 18 U.S.C. 16(b) of the Act is unconstitutionally vague. In his SCOTUSblog argument preview, Kevin Johnson explains that the case raises a due process vagueness challenge to a civil immigration statute. The federal government argues that such a challenge is not cognizable but that, in any event, the statute is not vague. Because of the possibility of expanding the void-for-vagueness doctrine into the immigration context, Johnson argues that this case could have “potentially far-reaching constitutional implications.” In the second case of the day, Midland Funding, the Court must decide whether it is a violation of the Fair Debt Collection Practices Act to file a proof of claim on a time-barred debt in a bankruptcy proceeding. In other words, as Diane Davis of Bloomberg BNA explains, the case will address “just how much the debt buying and collection industry can leverage the bankruptcy system to collect on debts they otherwise couldn’t pursue.”

On Wednesday, the Court will hear arguments in Lee v. Tam and Ziglar v. Abbasi.  Lee presents a potential challenge to the Free Speech Clause of the First Amendment. The case involves an Asian-American band called “The Slants” who sought to trademark their band’s name. However, the United States Patent and Trademark Office denied the trademark registration request under the “disparagement” provision of the Lanham Act. The provision provides that no trademark shall be refused unless “it [c]onsists of…matter which disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The Court will consider address whether this provision violates the First Amendment. NPR discussed this case in its weekly “Words You’ll Hear” segment. Finally on Wednesday, the Court will hear a case that relates to the terror attacks of September 11, 2001. A group of Muslim men were detained by the United States after the attacks, and they subsequently sued for violation of their constitutional rights. The question in front of the Court is about the men’s right to sue federal officials. SCOTUSblog explains the arguments the Court is likely to hear on Wednesday. The three basic questions in the case are whether the judge-made cause of action under which the men are suing, known as a Bivens action, reaches the allegations of the case, whether the defendants are immune, and whether the plaintiffs adequately stated a claim in their complaint. The Guardian addresses the implications of this case under the Trump Administration and more generally discusses civil rights organizations’ expectations for the next four years.

Weekly Roundup – January 13, 2017

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Today, the Court met for conference to discuss petitions for certiorari. It granted certiorari in 16 cases, for a total of 13 hours of oral argument, all likely to be argued this Term. The Orders List is here, and Amy Howe of SCOTUSblog discusses some of the grants here. In three different cases, consolidated for a single hour of argument, the Court agreed to consider whether the National Labor Relations Act, which protects’ employees right to engage in “concerted activities for the purpose of … mutual aid and protection,” means that an arbitration agreement cannot preclude an employee from bringing a class action. The National Labor Relations Board ruled that it did, and the courts of appeals had split. This is a very important case, pitting the Federal Arbitration Act against the NLRA. It will also be very interesting to see if the Trump administration continues to support the NLRB’s position, as the Obama Administration has.

Even before today, the eight-member Court was busy this past week. On Monday, the Court handed down a per curiam opinion in White v. Pauly, ruling without hearing oral argument and without full briefing. Samuel Pauly is a New Mexico man who was shot and killed by police officer Ray White after Pauly pointed a gun at White and a group of officers. Pauly’s estate sued the officers, arguing that his constitutional right against use of excessive force was violated. White argues he used a reasonable amount of force and that he is entitled to qualified immunity. The lower court considered the use of force from the perspective of the suspect instead of the perspective of a reasonable police officer. The lower court denied the officers’ motion for summary judgment on the basis of qualified immunity. The Supreme Court vacated, holding that the lower court incorrectly relied upon “general principles from other excessive force cases,” instead of identifying a case with similar facts and circumstances to the case at hand. It also held that as long as White did not violate “clearly established statutory or constitutional rights of which a reasonable person should have known,” then he is entitled to qualified immunity. Although the Court did not discuss the other officers’ qualified immunity claims in detail, it indicated it was expressing no opinion on whether qualified immunity might be available to them based on other arguments. Justice Ginsburg concurred, emphasizing that the Court’s opinion did not preclude denial of summary judgment on qualified immunity grounds on remand. Review the opinion, here.

Also on Monday, in orders issued from its January 6 Conference, the Court asked the U.S. Solicitor General to file briefs detailing the United State’s view in four cases: Rubin v. Iran, Bank Melli v. Bennett, Fenkell v. Alliance Holdings, and Bulk Juliana v. World Fuel Services. Two cases, Rubin and Bank Melli,  involve lawsuits against the Islamic Republic of Iran and the Foreign Sovereign Immunities Act. Fenkell addresses the Employee Retirement Income Security Act of 1974. And Bulk Juliana discusses maritime-law. Read more about Monday’s orders on SCOTUSblog.

And on Monday, the Court heard argument in two cases: Nelson v. Colorado and Lewis v. Clarke. Nelson involves a challenge to Colorado’s Exoneration Act, which requires the state to return fees and other payments made by criminal defendants if their convictions are reversed or overturned — but only if the defendants establish their innocence by clear and convincing evidence. Colorado faced very skeptical justices, who appeared to believe that return of such payments should be routine without any special showing. USA Today breaks down Monday’s arguments in front of the Court. In Lewis, the Court addresses sovereign immunity of an Indian tribe. Todd Henderson of SCOTUSblog analyzes the arguments in front of the Court, notes how complex they are, and expresses doubt that the 8-member Court will issue a sweeping ruling.

On Tuesday, the Court heard Expressions Hair Design v. Schneiderman and Goodyear Tire & Rubber Co. v. Haeger. Expressions Hair Design evaluates at the constitutionality of no-surcharge laws and the difference between paying in cash versus paying with a credit card. The Washington Post’s Robert Barnes discusses the role the First Amendment plays in this case.

Finally, on Wednesday, the Court heard Endrew F. v. Douglas City School District involving the Individuals with Disabilities Act and what “appropriate” public education children are entitled to. In her latest Amicus podcast titled “And Then There Were Eight,” Slate’s Dahlia Lithwick speaks with Endrew F.’s lawyer about the case.

The Week Ahead – January 9, 2017

The Court’s first week of hearing arguments after the holidays will be busy. The week’s schedule includes arguments in five cases.
On Monday the Court will first hear Nelson v. Colorado, a case deciding whether the state’s Exoneration Act violates the due process clause of the 14th Amendment. Under the statute, individuals whose convictions have been reversed must prove their innocence by clear and convincing evidence in order to recover the payments they were required to make to the government as a result of those convictions. The petitioners, Shannon Nelson and Louis Alonzo Madden, were convicted in separate trials of unrelated sexual assault offenses, and each assessed fees and restitution the state imposes only upon convicted defendants. Nelson’s conviction was reversed, and the jury her second trial acquitted her on all counts. The trial court ruled that it lacked authority to directly return the $702.10 that her inmate account had been docked, and Nelson appealed. Madden’s conviction was invalidated on post-conviction review. The trial court refunded Madden his fees, but not the $757.75 in restitution he had already paid. The Colorado Court of Appeals ruled in both cases that defendants in their position are entitled to a full refund of any and all monies paid relevant to a conviction that has been vacated. The Colorado Supreme Court reversed in both cases. Chief Justice Nancy Rice held for the majority that no state law authorized trial courts to issue such refunds, and that the civil remedy in the Exoneration Act satisfies whatever due process rights such individuals might have. SCOTUSblog’s Steve Vladeck previews the argument .The New York Times discusses fees imposed by various government entities, including the fees in this case.

Also on Monday the Court will hear Lewis v. Clarke, which presents the issue of whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment. In 2011, William Clarke, who was on the job, working for the Mohegan Tribal Gaming Authority, rear ended Brian and Michelle Lewis on a highway in Connecticut. The gaming authority is an arm of the Mohegan Tribe. Clarke was driving gamblers home from the Mohegan Sun Casino, owned by the tribe. The Lewises sued Clarke in Connecticut court. The Connecticut Supreme Court held that the tribe’s sovereign immunity applied to Clarke, and therefore, the Lewises can sue in a gaming disputes court operated by the tribe, but not in Connecticut state court. The Atlantic discusses the case, and SCOTUSblog has an argument preview here:

On Tuesday the Court will hear another two cases, starting with Expressions Hair Design v. Schneiderman. In this case, the Court will decide whether state no-surcharge laws unconstitutionally restrict speech conveying price information or regulate economic conduct. Merchants, led by Expressions Hair Design, have argued that the New York anti-surcharge statute violates the First Amendment because it prevents businesses from describing any higher price they charge to card users as a “surcharge”. The U.S. Court of Appeals for the Second Circuit concluded that the New York statute does not regulate speech, only conduct. The court held that the statute affected only a “pricing practice,” which does not have First Amendment protections. The petitioners argue that the statute would allow the merchants to charge different prices to card users and customers who pay in cash if they told the cash users they were getting a discount. They argue that the statute prohibits only the true statement that merchants are imposing a “surcharge” for payment by card. The difference between using the term “cash discount” or “card surcharge,” they argue, can affect customers’ responses. By forbidding merchants to use the surcharge label, the statute prevents merchants from using accurate information tin communication with their customers, they argue. Bloomberg provides a summary of the case.

Also on Tuesday the Court will hear arguments in Goodyear Tire & Rubber Co. v. Haeger. The Court will decide whether a federal court must tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct, as well as what such a causation requirement would involve. Leroy, Donna, Barry and Suzanne Haeger were injured when one of the Goodyear G159 tires on their motor home failed while the car was traveling on an Arizona highway. The Haegers sued in 2005. Discovery commenced in federal court, where the case was moved. After settlement, the Haegers moved for discovery sanctions because of Goodyear’s failure to disclose the results of the federally mandated “Heat Rise” test. The district court relied on its inherent power to sanction. The court found that Goodyear and its lawyers had acted in bad faith and ordered the tire company and two of its attorneys to pay more than $2.7 million in attorney’s fees and costs. The district court did not give Goodyear or its lawyers a jury trial before the sanctions. The U. S. Court of Appeals for the Ninth Circuit affirmed. The court of appeals held that the district court did not abuse its discretion in awarding the full amount of litigation fees, even without finding a precise linkage between the acts of bad faith and the Haegers’ trial costs. SCOTUSblog delves into the case.

On Wednesday, the Court will hear Endrew F. v. Douglas County School District, which presents the issue of what level of educational benefit school districts must confer on children with disabilities to satisfy the Individuals with Disabilities Education Act. Endrew F. (also known as Drew), is an autistic student who attended Douglas County School District in Colorado from preschool through fourth grade under an Individualized Education Program. His parents disagreed with school officials about the IEP proposed for him for fifth grade, so they enrolled him in a private school, where he has, according to them, “made academic, social, and behavioral progress.” Drew and his parents filed a complaint with the state’s department of education. They claimed the district had denied Drew a FAPE (“free, appropriate public education”) as the Act guarantees, and sought reimbursement for the tuition they had paid to the private school. A hearing officer ruled for the school district, finding that Drew had progressed in the district. Drew and his parents then sued in federal district court, which also ruled in favor of the school district. The U.S. Court of Appeals for the 10th Circuit upheld that ruling. It said that the school district needed to try to provide Drew with an educational benefit that was “merely more than de minimis.” Drew’s proposed IEP was “substantively adequate” under that test, the court concluded. The Denver Post says this could be a landmark case for students with disabilities throughout the nation. Amy Howe of SCOTUSblog also discusses what “appropriate” educational benefit means with regard to FAPE.

The Court will meet in Conference on Friday both to discuss argued cases from the week and to rule on pending petitions for certiorari.

Weekly Roundup – January 7, 2017

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The Supreme Court held its first Conference of the new year on Friday, January 6, and orders are expected to be released on Monday morning. The Court appeared in this past week’s news in other ways, however. Amy Howe of SCOTUSblog reported that Merrick Garland’s nomination had officially expired on January 3rd. Judge Garland will continue to serve on the D.C Circuit, but the expiration of this SCOTUS nomination leads the way for President-elect Trump to nominate the next Justice once he takes office. Bridget Bowman of Roll Call reported that the new Senate Minority Leader, Chuck Schumer stated this week that he is prepared to block Trump’s nominee to the Court if he or she is not “mainstream.” Currently, Trump needs the support of at least 8 Democrats to fill the vacant seat, as 60 votes are needed to end the filibuster to a nomination and fill the seat, and Republicans only hold 52 seats. The Republican-controlled Senate, however, could eliminate the filibuster for Supreme Court nominees, as the Democrats did for executive-branch nominees and lower court judges when they controlled the Senate in 2013. Schumer made clear that he will use any leverage he has to block Trump’s nominee, and stated “We are not going to make it easy for them to pick a Supreme Court justice.”

Politico reported on Tuesday that President-elect Trump’s short list of picks for the next justice has narrowed to a half-dozen, and he and his advisors are considering nominees for a second appointment. Appointing the next Supreme Court Justice is apparently one of the first acts that Trump wants to complete after he takes office. Politico reported that 7th Circuit federal appeals court Judge Diane Sykes and 11th Circuit Judge William Pryor are two of the most discussed names to take the place of the late Antonin Scalia. Trump has reportedly told his advisors that he wants to pick someone who is not “weak” and has sought advice from a variety of personalities, including Fox News legal analyst Judge Andrew Napolitano, Ted Cruz, Rick Santorum, and Senator Mike Lee.

Wrapping up 2016, Chief Justice John Roberts released his year-end report on the federal judiciary. Amy Howe of SCOTUSblog reported that Justice Roberts focused the report on the “crucial role” that federal district judges play in the federal court system. He also noted recent changes made to federal civil court rules that give more control to district judges in early management of cases, and included statistics on the workload of the federal courts. In a New York Times piece entitled What the Chief Justice Should Have Said, Linda Greenhouse criticized the report for failing to address the Supreme Court vacancy that will soon reach its one-year anniversary.

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.

Weekly Roundup, December 2, 2016

On Monday the Court heard arguments in Beckles v. United States. The case presents several issues revolving around a sentence enhancement for what prior convictions for what the sentencing guidelines call “a crime of violence.”  The case involves both issues of interpretation of the phrase and a constitutional challenge that it is void for vagueness. During oral arguments, some of the justices noted that the guideline commentary partly interpreted the clause, presumably providing meaning. They also questioned whether the commission could not best clarify its own language. Janice Bergmann, representing Beckles, responded that the guideline language was drawn from the ACCA residual clause, so interpretation or examples offered by the commission would be arbitrary. Deputy Solicitor General Michael Dreeben argued for the government. Dreeben presented a due-process framework that is fair but considers “history and practice.” Discretionary sentencing, he explained, is built on “individualization or proportionality.” SCOTUSblog discusses Monday’s arguments in detail, here.

On Tuesday, the Court heard arguments in Moore v. Texas, which presents the issue of whether Texas’s method of determining whether an inmate is intellectually disabled, and therefore cannot be executed, violates the Constitution. Attorney Clifford Sloan, representing Bobby James Moore, argued that the determination of intellectual disability must consider the medical community’s diagnostic framework. The state’s standards date back to 1992. Arguing on behalf of the state, Texas Solicitor General Scott Keller said that the Texas framework was not “free-floating” but was consistent with the Supreme Court’s decisions in Hall v. Florida in 2014 and Atkins v. Virginia in 2002. The New Yorker dives into the life of James Moore in its interesting article titled “Will the Supreme Court stop Texas from executing the intellectually disabled?”

In the final case of the week, Jennings v. Rodriguez, the Court must determine whether immigrants must be guaranteed a bond hearing and possible release from custody. On Wednesday Ahilan Arulanantham of the American Civil Liberties Union of Southern California argued for detained immigrants. He defended a lower court injunction and argued that the Ninth Circuit’s requirement of a bond hearing every six months was appropriate. Ian Gershengorn, the Acting Solicitor General, argued for the government, and relied on Demore v. Kim, particularly with respect to detaining immigrants convicted of certain crimes. He argued that “[t]he Ninth Circuit’s decision is a serious misuse of the constitutional avoidance canon.” Kevin Johnson breaks down the arguments on either side of this debate via SCOTUSblog.

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.