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Weekly Roundup – February 24, 2017

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.)

After observing the Presidents’ Day holiday on Monday, the Court heard oral arguments in two cases on Tuesday and one Wednesday. Before Tuesday’s arguments, however, Acting Solicitor General Noel Francisco presented the newly confirmed Attorney General, Jefferson Sessions, to the Court. Chief Justice Roberts wished Sessions well on behalf of the Court.  Sessions did not stay for the oral argument.

The Court started off Tuesday with Hernandez v. Mesa, a case in which a U.S. Border Patrol agent fatally shot a 15-year-old boy on Mexican territory. The case presents complicated issues about the extent to which constitutional rights are available to people who are not in and do not have a connection to the United States. As ABC News explained, Robert Hilliard, representing Sergio Hernández’s parents, argued that the case was an easy extraterritorial case for five reasons: “the conduct of the police officer happened inside the U.S.; it was a civilian domestic police officer; it was a civilian plaintiff, not an enemy combatant; it was one of the most ‘fundamental rights, the right to life’ and lastly; the government of Mexico supports the claim.” Nonetheless, the justices appeared very concerned about the broader implications of ruling in favor of the plaintiffs.

Also on Tuesday the Court heard arguments in McLane v. Equal Employment Opportunity Commission, which presented the question of whether the Ninth Circuit was correct to apply de novo review when it ruled that a district court had construed “relevance” too narrowly in reviewing a subpoena issued by the Equal Employment Opportunity Commission during its investigation of a sex discrimination charge. Charlotte Garden of SCOTUSblog analyzes the arguments presented in this fairly technical-sounding case — although one that could have significant implications for EEOC investigations in the future. Interestingly, neither the EEOC nor the employer defended the Ninth Circuit’s position, and the Supreme Court had to appoint a friend of the court to defend that judgment.

On Wednesday, the court heard arguments in Kindred Nursing Centers v. Clark, in which the Kentucky Supreme Court ruled against enforcing arbitration agreements that relatives of two nursing home residents with power of attorney signed on their behalf. Matthew Loughran of Bloomberg BNA reports that this decision “could have a much broader application to limit the use of powers of attorney in the state generally.” Loughran discusses how the Justices’ questions during oral arguments focused on the scope of the state court decision beyond just arbitration agreements. U.S. News & World Report notes that President Trump’s daughter, Ivanka Trump, attended arguments oral arguments in the Kindred case Wednesday. She attended as an invited guest as Justice Kennedy. CNN reports that Ivanka met the Justice at the inaugural lunch at the Capitol last month. During her visit to the Court, she sat in a VIP section for invited guests.

On Wednesday, the Trump administration withdrew guidance that the Obama administration had issued requiring schools that receive federal funding to allow transgender students to use the bathroom consistent with their gender identity. This Obama-era guidance is at issue in the case of Gloucester County School Board v. G.G., currently scheduled for oral argument on March 28. On Thursday, the Clerk’s Office asked the parties to submit letters to the Court by Wednesday explaining what, if any, effect this withdrawal has on the case. Even before that order, however, the Chicago Tribune reported that G.G.’s lawyers told the press that the Supreme Court should hear the case and decide the scope of federal protections for transgender students.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”


The Gorsuch Report—Week 4

It’s been over three weeks since Judge Neil Gorsuch was nominated to become a U.S. Supreme Court associate justice. Here’s the latest news on his confirmation process.

Among the senators who will vote on his appointment, Minority Leader Chuck Schumer remains Gorsuch’s most vocal critic. The Democratic senator from New York previously took to the pages of the New York Times to air his concerns with Gorsuch. While praising Gorsuch as “clearly very smart, articulate and polite, with superb judicial demeanor,” Schumer criticized him for refusing “to answer even the most rudimentary questions” about where he stands on pressing legal issues.  For Schumer, this all feels “eerily similar” to what happened when Chief Justice Roberts went through this same process. Roberts was “similarly charming, polished and erudite,” Schumer writes. He “played the part of a model jurist.” But “when Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge,” warns Schumer.

The Minority Leader remains unpersuaded. When he appeared on “The View” talk show on Tuesday, Schumer explained that Gorsuch’s refusal to tell him whether a ban on Muslim immigrants would violate the Constitution gave him an “eerie feeling.” Although no other senators have reported eerie feelings when talking with Judge Gorsuch, other Democrats have expressed concern about his unwillingness to answer questions on issues of executive authority and separation of powers.

Senator Kelly Ayotte, the New Hampshire Republican who is serving as Gorsuch’s escort for his meetings with Senators, came to the judge’s defense. “The judge has ethical responsibilities that he cannot answer questions about cases that may potentially come before the court,” she explained in an interview with CNN. “I’ve been in 58 meetings with him. He’s been very forthcoming. He has answered questions.” She added that Schumer simply “asked him questions he knew he couldn’t answer.” It’s all something of a scripted performance, explains Senate Majority Leader Mitch McConnell: “Everyone knows you are going to ask your best question and they are not going to answer it.”

In Politico, Seung Min Kim assesses Gorsuch’s best chance for securing the support of some Democrats in the Senate, arguing that the judge should focus on Democratic senators who face an upcoming reelection in states that Trump won. He adds that Gorsuch’s “biggest liability remains Trump, whom Democrats will seize on during the confirmation fight.”

Gorsuch himself has resisted efforts to define and categorize his work as a judge. “I resist pigeon holes,” he said during his confirmation hearings for his appointment to the Tenth Circuit. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.” The Washington Post offers an in-depth profile of the judge that concludes that we should not be too quick with those pigeonholes: “Gorsuch himself is perhaps not so predictable. An examination of his development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist reveals that he is quite capable of surprise.” (The pitfall of pigeonholes was also the theme of an earlier New York Times article on Gorsuch’s views on gay rights.)

This Day in Supreme Court History—February 20, 2002

On this Day in 2002, the Supreme Court heard oral arguments in Zelman v. Simmons-Harris, one of the most significant Establishment Clause cases in recent years. The Court considered whether a state program that provides school vouchers to parents that can be used to pay for education at religious schools violates the First Amendment’s prohibition on government “establishing” religion.

Ohio established the Pilot Project Scholarship Program to provide educational choices to families with children who lived in the Cleveland City School District. Both the district court and  the Sixth Circuit Court of Appeals held that by effectively channeling state funds to religious schools, Ohio had violated the Establishment Clause .

At the Supreme Court, lawyers defending the voucher program insisted that the program was religiously neutral because the state selected voucher recipients based on income and place of residence, not religion. The parents, not the state, made the decision about whether the ultimate recipient of the voucher was a religious school or a non-sectarian school. U.S. Solicitor General Theodore Olson, who argued in support of Ohio’s position in the case, argued that because parents had a choice of sectarian and non-sectarian schools, a “reasonable observer” would not “believe that the government is putting its thumb in favor of religion on the scales here.”

Justice Stephen Breyer challenged this line of argument. Imagine you are a foreigner who comes to the United States and learns that billions of government dollars are going to the support of religious schools, Breyer asked one of the lawyers defending Ohio’s program. “Wouldn’t you then say the United States of America, like France or like England, the government of the United States endorses a religious education for young children by putting money up, massive amounts?”

The lawyer countered that the Ohio program allots more funding to parents whose children attend non-sectarian schools than those whose children attend religious schools, which he insisted showed that this program did not amount to governmental endorsement of a religion.

Justice Souter was also skeptical of Ohio’s arguments. He noted that 96 percent of the families who used the vouchers chose parochial schools, and asked whether that suggests “that there is perhaps something specious about this notion that it’s a matter of wide-open choice here.” Solicitor General Olson replied that the Court had previously ruled that parents’ “purely private choices” will not be “associated by a reasonable observer with a governmental decision.”

The lawyer representing the challengers to the voucher program pressed the following argument: “Millions of dollars of unrestricted public funds are transferred each year from the state treasury into the general coffers of sectarian, private schools, and that money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven. It is a given that if those funds are properly attributable to the state, the program violates the Establishment Clause.”

The audience erupted in laughter when Justice Stevens posed hypotheticals trying to locate where exactly the challengers’ lawyer would not find the Establishment Clause to have been violated. The lawyer said a voucher program in which one out of ten schools funded were sectarian would be a “borderline” case, to which Stevens responded: “Say there are a hundred: ninety-nine non-sectarian, and one sectarian… Give us something that isn’t borderline.”

On June 27, 2002, the Court ruled, in a 5-4 vote, that the voucher program did not violated the Establishment Clause. The majority reasoned that the program was enacted for the valid secular purpose of providing educational assistance to impoverished children in a failing public school system, and that the program offered private choice that did not advance religion. Justices Souter, Ginsburg, Stevens and Breyer dissented.

The Week Ahead – February 20, 2017

The February sitting of the Supreme Court will begin on Tuesday, February 21, as the Court will be observing President’s Day on Monday. Orders from Friday’s Conference are expected on Tuesday, and opinions may be handed down on Wednesay.

On Tuesday, the Court will hear arguments in Hernandez v. Mesa and McClane Company v. EEOC. Hernandez concerns the shooting death of Sergio Adrian Hernandez Guereca, a fifteen-year old Mexican national, and whether the border patrol agent who shot him on Mexican territory violated the Fourth Amendment protection against unjustified deadly force. (There are also other issues presented.) Orin Kerr at the Washington Post provides a pre-argument analysis of Hernandez. “One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad,” he writes. He notes that important questions of, for example “what kind of Internet surveillance is permitted hinges on the question.” Yet the case presents the Fourth Amendment question in a factual “setting that appears to implicate almost none of the real stakes of the answer.”

McClane, the second case being argued on Tuesday, considers EEOC subpoenas and whether or not circuit courts should review them de novo (without deference to the district court’s decision) or review them deferentially to the district court’s decision, as is the practice of all circuit courts except for the Ninth Circuit.

On Wednesday, the Court will hear arguments in Kindred Nursing Centers v. Clark. Kindred concerns the Federal Arbitration Act and whether it precludes a state supreme court from holding an arbitration agreement unenforceable based on the lower court’s skepticism of the benefit presented by pre-dispute arbitration agreements. Ronald Mann from SCOTUSBlog provides an argument preview. He also explains that although the Court has recently decided similar arbitration cases in favor of upholding arbitration agreements, this will be the first such case presented to the 8-member Court. Nonetheless, he suggests that the case is likely to come out the same way. Although many of these cases were decided 5-4, with Justice Scalia in the majority (and often as the author), the last such cases were not so close. Indeed, Mann notes that Justice Breyer “consumed a good bit of last year’s argument in DIRECTV[, Inc. v. Imburgia], musing about the problems that the justices face when lower courts intentionally flout unpopular lines of cases like the court’s arbitration cases.”

On Thursday, Justice Ginsburg will speak at the Linser Auditorium at The George Washington University to discuss her most recently published book, My Own Words, along with book contributors Mary Hartnett and Wendy W. Williams. My Own Words features a selection of her writings and speeches spanning her life and career, and is the first book that Ginsburg has published since her appointment to the Court in 1993.

To stay up to date on news about Judge Gorsuch’s nomination to the Supreme Court, check out ISCOTUSnow during the week for “The Gorsuch Report: the Latest News on the Nomination Process.”

Weekly Roundup – February 17, 2017

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.)

The Supreme Court was not especially busy this week, with its only official event a Conference in Friday. Nonetheless, there are still a few news stories of note. Monday marked the first anniversary of Justice Antonin Scalia’s death. USA Today reported that Justice Scalia “made quite an impression on a first-year law student from Colorado named Neil Gorsuch,” noting that Judge Gorsuch was in attendance when Scalia gave the Oliver Wendell Holmes Jr. Lecture at Harvard Law School in 1989. During that event, Scalia discussed his philosophy on adhering to the Constitution and other laws as they were written, and said “[j]udges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.” USA Today notes that if he is confirmed, Judge Gorsuch will be the first Justice to have been influenced by Scalia while still in law school. Nonetheless, his influence has already been widely felt. Justice Elena Kagan has stated Scalia’s teachings “changed the way almost all judges, and so almost all lawyers, think and talk about the law,” and that “we’re all textualists now.”

Corinne Purtill, of Quartz wrote on Wednesday about Justice Ruth Bader Ginsburg’s February 6, 2017 speech at Stanford University.  Justice Ginsburg gave some advice that she finds to be useful at both work and in her life. The advice, she explained, “comes from my savvy mother-in-law, advice she gave me on my wedding day. ‘In every good marriage,’ she counseled, ‘it helps sometimes to be a little deaf.’ I have followed that advice assiduously, and not only at home through 56 years of a marital partnership nonpareil. I have employed it as well in every workplace, including the Supreme Court.” She explained that “when a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade.” The Justice remarked that she has used this strategy while working on the Supreme Court, and stated that she and her colleagues on the Court make sure they maintain respect and friendship, adding “Collegiality is crucial to the success of our mission.” Video highlights of Justice Ginsburg’s remarks, along with a summary, can be found Stanford News. ISCOTUSnow discussed other coverage of the lecture on Monday.

The official confirmation process of Judge Neil Gorsuch has also begun this week. According to The Washington Times, Judge Gorsuch has delivered his questionnaire to the Senate. The questionnaire is the first step in the confirmation process, and reveals extensive detail of his career in law and justice. Judge Gorsuch reported that he has never had an opinion he wrote overturned by the Supreme Court, although one was vacated. The Washington Times article highlighted some of the cases in which Judge Gorsuch refused to give the executive branch free reign, noting that Democrats on the Judiciary Committee will undoubtedly want “a proactive show of independence.” The Washington Post announced on Thursday that his confirmation hearings will begin on March 20, 2017.

For more information on the nomination of Judge Gorsuch, check out ISCOTUSnow next week for “The Gorsuch Report: the Latest News on the Nomination Process” where we will update in more detail the latest news on his nomination.


Weekly Roundup – February 10, 2017

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.)

This week, while the Supreme Court was in recess, Justice Ginsburg spoke at Stanford University, delivering the 2017 Rathbun Lecture on a Meaningful Life. Ginsburg addressed topics including the importance of collegiality at the Court, her desire to change the Electoral College and her criticism of the death penalty, and what it means to lead a meaningful life. “I tell the law students I address now and then, if you’re going to be a lawyer and just practice your profession, well, you have a skill, so you’re very much like a plumber. If you want to be a true professional, you will do something outside yourself,” Ginsburg stated. “Something to repair tears in your community. Something to make life a little better for people less fortunate than you. That’s what I think a meaningful life is – living not for oneself, but for one’s community.”

On Tuesday, a three-judge panel from United States Ninth Circuit Court of Appeals heard arguments from attorneys for the state of Washington and the U.S. Department of Justice about President Trump’s Executive Order mandating a travel ban affecting seven Muslim-majority countries and refugees. The parties argued over whether a federal judge’s temporary restraining order precluding enforcement of the order, should be stayed. On Thursday, the Ninth Circuit issued an opinion refusing to stay the TRO. It did not reach all of the issues presented in the case, however, and it set a briefing schedule for fuller consideration.

Before the Ninth ruled, Adam Liptak of the New York Times argued that the issue will likely end up before the Supreme Court, but the decision from the Ninth Circuit might have the ultimate impact. He explained, “[n]o matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.” As of this writing, less than 24 hours after the Ninth Circuit decision, the federal government has not asked for Supreme Court intervention, and there are reports that the administration is considering rewriting the Executive Order.

The audio from the Ninth Circuit hearing was streamed live on Youtube and on CNN and MSNBC, with more than 137,000 people listening to the Youtube broadcast. Timothy McLaughlin from Reuters reports that around 2.6 million people tuned into the broadcast either online or on a news network. The hearings were conducted across a conference call, meaning only the audio could be broadcast; McLaughlin writes, “the lack of visuals did not scare away those interested – and even led some to liken the experience to huddling around a radio in the pre-TV era.”

That President Trump has been vocal in his dissatisfaction with the court rulings on his Order and has been disparaging of the judges and courts is affecting the confirmation process for Supreme Court nominee Judge Neil Gorsuch. In a meeting with Sen. Richard Blumenthal (D-CT) on Wednesday, Judge Gorsuch reportedly stated that Trump’s recent criticism of the judiciary, stemming from the stay on his executive order, was “demoralizing and disheartening.” The White House, however, has denied that these statements referred directly to the President, and Judge Gorsuch has not spoken publicly.

Julie Hirschfeld Davis of the New York Times argues that Gorsuch’s comments serve to emphasize the importance of the peculiar tension between Trump and the judiciary, writing, “The spectacle of a Supreme Court nominee breaking so starkly with the president who named him underscored the unusual nature of Mr. Trump’s public feud with the judiciary.” She goes on to say that “Mr. Trump’s rhetorical battle with the judiciary may also end up harming his cause in a case that may end up before the Supreme Court, by potentially stiffening the resolve of judges who feel their independence is under attack.” On the other hand, Rick Hanson at the Electoral Law Blog argues that Gorsuch’s statements were more of a strategic move made to secure his confirmation.

Finally, in an op-ed for the Washington Post, Jason Murray argues that liberals should resist the impulse to reject Gorsuch because he has “a fierce commitment to the rule of law”, is “remarkably similar. . .to Supreme Court Justice Elena Kagan,” and that “[t]his zeal for the rule of law gives. . . every confidence that Gorsuch, like Kagan, will stand firm against any effort by the Trump administration to abuse executive power.”

For more on the Gorsuch nomination, check out ISCOTUSnow’s Gorsuch Report on Wednesdays.

The Week Ahead – February 6, 2017

The Supreme Court is still in recess this week, but the nomination of Judge Neil Gorsuch means that the Court remains in the spotlight. Vice President Pence gave a speech to the conservative Federalist Society in Philadelphia last week, and according to CBS News, he stated that an attempt by the Democrats to filibuster the nomination would be “unwise.”  The Vice President noted that there has never been a successful filibuster of a United States Supreme Court Associate Justice nominee, and that Judge Gorsuch is willing to meet will all senators if they would like to. If there is a filibuster, however, President Trump has urged Senate Majority Leader Mitch McConnell to unleash the “nuclear” option. The nuclear option allows the nomination to move forward with a bare majority vote regardless of any filibuster, instead of the current 60-vote threshold to end a filibuster. For those interested in more information on the filibuster, the Washington Post’s “Fact Checker” explains some of the rules and history and takes issue with the language some Democrats have used in asserting that Judge Gorsuch must meet a 60-vote standard.

Scott Bomboy of Constitution Daily outlined the procedures for the next steps of Judge Gorsuch’s nomination. The Senate Judiciary Committee must authorize an investigation of Gorsuch, which includes a questionnaire for him to complete, an FBI investigation, and a rating of his qualifications issued by the ABA. After these are completed, a public Senate hearing will occur. After consideration by the Senate Judiciary Committee, his nomination will be sent to the Senate for a vote. (The nomination can move to the full Senate even if — as is highly unlikely here – the Committee votes against him.)

Linda Greenhouse of The New York Times recently discussed how the Supreme Court may respond to President Trump and evaluate any constitutionality debates that may arise from his actions. She argues that because Republican-controlled Congress appears unlikely to push back against Trump, the judiciary is now the only government branch “standing between the new administration and constitutional chaos,” and “going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.” Greenhouse notes that Chief Justice Roberts has in the past been deferential to broad claims of executive power related to national security, albeit sometimes in the minority. In particular, in  Boumediene v. Bush, the Supreme Court, in an opinion by Justice Kennedy, held that detainees at Guantanamo had the right to file habeas petitions. Chief Justice Roberts, however, joined what Greenhouse calls “a hyperbolic dissenting opinion by Justice Scalia that opened with ‘America is at war with radical Islamists’ …” And she notes that Roberts “also filed a dissenting opinion of his own, in which he asked rhetorically who had won the case. The answer, he said, was ‘certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.’”

In light of these concerns, Greenhouse urges the Senate Judiciary Committee to ask Judge Gorsuch about how he would have approached Boumediene.

Concerns about the role of the judiciary when confronted national security claims made by the executive were highlighted over the weekend when President Trump issued a series of tweets criticizing Judge Robart, the federal district judge who last week stayed Trump’s executive order on immigration. (That order is now on appeal in the Ninth Circuit and could well go to the Supreme Court next, possibly in the form of a request for a stay.) In one tweet, Trump said that he “cannot believe a judge would put our country in such peril. If something happens blame him and court system.” Numerous observers interpreted this and other tweets as attacks on an independent judiciary. And this too could play a role in the Gorsuch hearings: Professor Eric Posner argued in The New York Times that Judge Gorsuch must condemn those attacks or risk losing his support in the legal community.

Check out ISCOTUSnow this Wednesday for “The Gorsuch Report: The Latest News on the Nomination Process” where we will update the latest news on Judge Gorsuch’s nomination.


Weekly Roundup – February 3, 2017

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.)

The Court did not issue decisions or hear arguments this week, but President Trump’s nomination of Neil Gorsuch to the Court has the news buzzing. Gorsuch has served as a judge on the U.S. Court of Appeals for the 10th Circuit in Denver for the past ten years. He was appointed to the Tenth Circuit by President George W. Bush in 2006. SCOTUSblog profiled him in mid-January, and has also compiled a list of some of his important cases here. The Washington Post also takes a look at some of Gorsuch’s key decisions, including Gutierrez-Brizuela v. Lynch, where he argued that “Chevron deference” has gone too far. (Chevron deference requires a court to defer to an executive agency’s interpretation of an ambiguous statute.)

Numerous other news outlets and commentators describe Gorsuch’s background and jurisprudence, some emphasizing his views about religious freedom as reflected in his opinions in two cases involving the Obamacare contraception mandate. This week, Nina Totenberg at NPR also discussed Gorsuch’s originalist tendencies, and suggested that, if confirmed, Gorsuch likely will rule similarly to Scalia. Elsewhere, in response to claims about Gorsuch’s originalism, ISCOTUS Co-Director Carolyn Shapiro argues that originalism does not provide the objective answers its proponents claim.

Much coverage and commentary have focused on the confirmation process and the Democrats’ response to the nomination. On Wednesday, Senate Judiciary Committee Chairman Chuck Grassley said that he expects a confirmation hearing in about six weeks. CNS news reports that Grassley has suggested that the Senate should work through Easter break if necessary for a prompt confirmation. Meanwhile, some Democrats and their allies are urging a filibuster of the nomination, at least in part because of the Republicans’ refusal to even consider President Obama’s nominee, Judge Merrick Garland. Likewise, Senate Minority Leader Chuck Schumer has hinted that a filibuster could follow if the hearings reveal that Gorsuch is outside the mainstream.  The New York Times reports that President Trump encouraged the Senate majority leader, Mitch McConnell, on Wednesday to invoke the “nuclear option” and abandon the 60-vote requirement for confirmation, but Senator McConnell has not made his intentions clear, and some warn that the nuclear option could have deleterious consequences. CBS News discusses both sides of the argument here.

Finally, on Friday the Supreme Court announced its March argument calendar. To the surprise of some, the calendar includes arguments in two of the cases the Court had not previously scheduled (Murr v. Wisconsin on regulatory takings and Microsoft Corp. v Baker, on appeals of denials of class certification) because, people thought, they were likely to result in 4-4 splits, and it also includes argument in the very high profile case about transgender students’ access to bathrooms, Gloucester County School Board v. G.G.  But even if there are no delays in Senator Grassley’s confirmation schedule and even if the Senate promptly confirms Judge Gorsuch, he is very unlikely to be on the bench in time to hear those cases.

Return to ISCOTUS on Wednesday of next week to view our first weekly installment of “The Gorsuch Report,” where we survey the latest news on Supreme Court nominee Judge Neil Gorsuch.

The Week Ahead – January 30, 2017

The Supreme Court is currently in recess and will not meet again until its February 17 conference, but President Trump is expected to announce his Supreme Court nominee on Tuesday. In an interview with Sean Hannity at FOX News, Trump hinted that he was closing in on his nominee selection, stating: “I have made my decision pretty much in my mind, yes. That’s subject to change at the last moment, but I think this will be a great choice.” And on Monday, he announced that he had made his decision. There are three judges widely believed to be on his short list: Judge William Pryor of the Eleventh Circuit, Judge Neil Hardiman of the Third Circuit, and Judge Thomas Gorsuch of the Tenth Circuit.

Senate Democrats, however, are threatening to filibuster, regardless of who the nominee is, citing the Republicans’ refusal to even consider President Obama’s nomination of Judge Merrick Garland. As Senator Jeff Merkley of Oregon put it: “This is a stolen seat. This is the first time a Senate majority has stolen a seat…. We will use every lever in our power to stop this.”

Last week, Trump said that if Senate Democrats were resistant to confirming his nominee, he would encourage Senate Republicans to deploy the so-called “nuclear option”; in this scenario, the Senate Republican majority could eliminate the ability for the minority party to filibuster a Supreme Court nominee by changing Senate rules on a majority vote. Senate Democrats deployed the measure in 2013, when they changed Senate rules and eliminated the need for a supermajority for all federal judicial nominees – except for those nominated to the Supreme Court.

Burgess Everett at Politico describes the potential implications of the nuclear option, stating, “Eliminating the filibuster for Supreme Court nominees would shred the fabric of the chamber, making it much easier for future presidents to confirm ideologically extreme nominees and potentially leading to the death of the 60-vote threshold for legislation.”

In the meantime, while SCOTUS is in recess, several justices will be using the time to speak at events in the upcoming week; SCOTUS Map provides a directory these events here.

Today, January 30, Justice Sotomayor spoke at the University of Michigan’s 2017 Presidential Bicentennial Colloquia, along with Justice Susanne Baer of the Federal Constitutional Court of Germany. Martha S. Jones, co-director of Michigan Law’s Program in Race, Law & History, invited the justices to participate in the event to discuss how their diverse backgrounds have influenced their contributions to legal practice; Sotomayor is the first Latina woman to serve on the Court and Baer is the first openly lesbian justice on Germany’s High Court. Sotomayor urged the University to increase the number of African-American students attending, noting that the country “can’t reach equality in a larger society” without equality in education.

On February 1, Justice Ginsburg will speak at Washington and Lee University School of Law and the Virginia Military Institute. Ginsburg will be participating in an on-stage interview at VMI. The event will be open to the public.


Weekly Roundup – January 28, 2017

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.)

The Supreme Court did not hear any oral arguments this week, but they did issue orders on Monday.  Fox News reported that the Court declined to hear an appeal regarding Utah’s ban on polygamy, petitioned by the stars of the TV show “Sister Wives.” Utah has a stricter polygamy ban than other states, as it is illegal to live with a second “spiritual spouse,” if one is legally married to another person.

The Court was also a hot topic in the news following the inauguration of President Trump. The new president has reportedly narrowed his choice to replace the late Justice Antonin Scalia down to three nominees. The New York Times reported that the nominees include Atlanta Federal Appeals Court Judge William H. Pryor Jr., Denver Federal Appeals Court Judge Neil M. Gorsuch, and Pittsburgh Federal Appeals Court Judge Thomas M. Hardiman. The Democrats, however, remain angry about the Republican-led Senate’s refusal to even consider President Obama’s nominee, Judge Merrick Garland. Senate Minority Leader Chuck Schumer explains that the Democrats will oppose any nominee who is not in the “legal mainstream,” and if necessary will try to keep the seat open as long as they can.

USA Today provided short profiles of each of the nominees. Judge Pryor is the former Attorney General of Alabama, and once called Roe v. Wade “the worst abomination of constitutional law in our history.” However, it appears that he does not always take the expected conservative position on matters, as he has joined rulings in favor of transgender rights. Judge Gorsuch follows Justice Scalia’s view that the Constitution should be interpreted strictly as the Founders intended, and is not a “living” document that should be changed and adapted over time. He is also a former clerk to Justice Byron White and Anthony Kennedy. Judge Hardiman, sits on the same bench as President Trump’s sister, Judge Maryanne Trump Barry. He is a strong supporter of law enforcement and gun rights, similar to Justice Alito.