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The Week Ahead – March 20, 2015

Judge Neil Gorsuch’s confirmation hearing began on Monday in front the Senate Judiciary Committee. ISCOTUS co-director Carolyn Shapiro is live tweeting much of the hearing, and you can follow her at @cshaplaw. ISCOTUSnow will also have regular posts throughout the week about the hearing. Monday’s session was devoted opening statements by the Senators and by Judge Gorsuch. Questioning will start on Tuesday.

This post addresses non-Gorsuch news. This week, the Supreme Court has oral arguments on Monday, Tuesday, and Wednesday and Conference on Friday. Monday morning, the Court issued its Orders List from its Conference this past Friday, but it granted no new cases.

On Monday the Court heard arguments in Howell v. Howell. Under a divorce decree, John Howell was required to pay his ex-wife half of his Military Rtirement Plan income. Subsequently, the VA found that he suffered from 20% disability due to a shoulder condition related to his service. As a result, he waived a portion of his retirement income to receive disability benefits instead. The state court ordered him to indemnify his ex-wife for the reduction in her income, but John argues that the federal law governing military retirement pay preempts this action. His disability caused a 20% reduction in his income, and in order to receive disability payments he had to take a cut in his retirement pay. The Court will have to determine if John is still required to pay his ex-wife the full portion of his retirement income agreed upon after their divorce even though that retirement income has been reduced due to his military service injury.

Also on Monday the Court heard argument in Murr v. Wisconsin, a case involving property rights and the Takings Clause of the Fifth Amendment. According to Ilya Somin of  The Washington Post, this case “addresses a crucial question about when property owners are entitled to compensation under the Takings Clause.” The issue has to do with how to evaluate the burden of a regulatory taking when the property owner owns more than one parcel of land.

On Tuesday the Court will be hearing arguments in two cases involving big business. In Microsoft v. Baker, the plaintiffs sued Microsoft due to a defect in their Xbox 360, but the district court determined that a class action lawsuit could not take place because the defect affected only 0.4% of the video game consoles. The plaintiffs then dismissed their individual claims with prejudice and appealed the denial of class certification. The Ninth Circuit reversed. According to Law 360, Microsoft is arguing that the Court allowed the plaintiffs to do an “end-run around procedures” by allowing them to appeal a dismissal that they requested. On the other side, Professor Sergio Campos of the University of Miami School of Law noted that “class actions are often necessary because no class member has a stake sufficient enough to bring an individual lawsuit. Earlier this Term, Carolyn Shapiro discussed SCOTUS’s class action jurisprudence (and this case in particular) after Justice Scalia’s death, here.

Additionally on Tuesday the Court will hear arguments involving patents and the printer toner cartridge refill industry in Impression Products, Inc. v. Lexmark International, Inc. Lexmark has a program that allows customers a discount on printer cartridges if they return them to Lexmark when they are empty. Impression Products, Inc. acquired some of the cartridges abroad after a third party converted them to be re-used in violation of Lexmark’s return program. Impression Products resold them in the United States. Impression is arguing that they did not infringe upon the patent because Lexmark granted the authority to resell them when it initially sold them. The Court of Appeals found in favor of Lexmark by holding that their initial sale did not “confer authority” to Impression to resell them.  According to Adam Liptak of  The New York Times, this case will determine how much control patent-holders have over their products once they are sold. The Obama administration to had urged the Supreme Court to hear this case, arguing that the Court has held for 150 years that once a patented product is sold patent laws do not “constrain the subsequent use or resale of that article.”

On Wednesday the Court will hear County of Los Angeles v. Mendez, in which the plaintiffs, a homeless couple, allege that the police violated their Fourth Amendment rights when they entered the shed where the couple was staying without a warrant or announcing their presence.  Plaintiffs were shot by the police because they had a firearm in the shed, and whether or not they were moving the gun or pointing it at the officers is contested. The Ninth Circuit held that the police violated the plaintiff’s Fourth Amendment rights. But as SCOTUSblog explains, the case involves complex issues of qualified immunity, causation, and provocation, in the context of complex and disputed facts, and the briefing at times seems to confuse the issues. The decision of this case will determine if Los Angeles County will have to pay the plaintiffs four million dollars in damages for their injuries.

Finally, on Wednesday the Court will hear arguments in Water Splash, Inc. v. Menon.  Water Splash sued a former employee, a Canadian citizen residing in Quebec, in Texas state court. The respondent was served by mail and did not respond, leading the trial court to grant a default judgment. The Texas Court of Appeals reversed the judgment, citing The Hague Service Convention treaty. The Supreme Court will have to determine if the treaty authorizes service of process by mail. Law 360 analyzes the history of the case, here.

Finally according to U.S. News, President Trump has vowed to appeal his revised travel ban to the Supreme Court if necessary after the ban has been challenged in both Hawaii and Maryland. In Hawaii, U.S. District Judge Derrick Watson stated “the executive order was issued with a purpose to disfavor a particular religion,” and issued a TRO, but the Trump administration argues that the ban is needed for national security.  A district court judge in Maryland has also concluded that the order is likely unconstitutional as it was “intended to be a ban on Muslims,” and imposed a preliminary injunction on certain portions of the order. The government has filed notice of appeal from the Maryland case, and will be appealing to the Fourth Circuit.


Weekly Roundup – March 17, 2017

Litigation over the President’s travel bans continues. Earlier this week, judges in Hawaii and Maryland issued orders preventing President Trump’s second travel-ban Executive Order from taking effect. In Hawaii, U.S. District Judge Derrick Watson imposed a nationwide temporary restraining order after finding that “a reasonable, objective observer … would conclude that the executive order was issued with a purpose to disfavor a particular religion.” And in Maryland, U.S. District Judge Theodore Chuang issued a nationwide preliminary injunction enjoining one of the Executive Order’s provisions. Both courts relied on Trump’s campaign promises to impose a ban on Muslims coming to the United States, as well as on subsequent statements made by him and others. While speaking at a rally in Nashville after the Hawaii judge ruled, Trump vowed that he would take the case “as far as it needs to go,” including to the Supreme Court, to defend the ban.

Real Clear Politics recounts an interview CNN’s Anderson Cooper had with Alan Dershowitz, lawyer and constitutional scholar, about Trump’s travel order. Dershowitz explains that if the Supreme Court considers the ban, “[i]t will be an important decision because it will be the first time a court has really handled political statements during a campaign.” And the legal blogosphere is full of commentary on what the Supreme Court might and should do about those statements if and when it considers the travel ban. The Civil Rights Litigation Clearinghouse at the University of Michigan is collecting the filings in all of the cases challenging the travel bans.

On a lighter note, this week Chief Justice Roberts presided over a trial in a lawsuit  against Tom Sawyer. The case was “brought by several boys, played by actors, who had come to regret whitewashing Aunt Polly’s fence. Tom’s guile in persuading them to do his work, they said, amounted to fraudulent misrepresentation.” As the New York Times noted, “the boys, though of limited means, had somehow managed to hire Paul D. Clement, a legal superstar, to represent them.” Tom Sawyer was likewise well-represented, by appellate and Supreme Court expert Cate Stetson. Athough the judicial panel ultimately concluded the case was moot and declined to issue a ruling, it appeared to be a successful evening of entertainment.

Be sure to check ISCOTUSnow next week for the latest news on Supreme Court nominee Judge Neil Gorsuch, as hearings start Monday. ISCOTUS co-director Carolyn Shapiro, @cshaplaw, will be live-tweeting the hearings. Linda Greenhouse offers her opinion of the nominee and the nomination process in the New York Times this week. Echoing the ambivalent position of many on the left, she notes that while she is not opposed to Judge Gorsuch’s confirmation, at least based on what she currently knows, and she thinks it is time to bring the Supreme Court to “full strength,” “the Supreme Court vacancy is not rightfully President Trump’s to fill…”

To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.

The Gorsuch Report—Week 7

Less than a week away from the confirmation hearings for Neil Gorsuch to be the next associate justice of the Supreme Court and the media machine is ramping up. Journalists are publishing a new round of stories on Gorsuch. Commentators, activists, and politicians are busy attacking and defending the nominee, each side hoping to score a few points before the main event begins on Monday.   

In the National Law Journal, Tony Mauro reviewed notes from a 2010 speech Judge Gorsuch submitted to the Senate Judiciary Committee, concluding that the nominee offered a distinctly “bleak” portrait of the American legal system. Among Gorsuch’s complaints were the expense and delays of the discovery stage of civil litigation. “Not long ago we used to have trials without discovery,” he noted. “Now we have discovery without trials.” Gorsuch also lamented the increasing “vitriol” of the Supreme Court confirmation process.

The New York Times published an article detailing Gorsuch’s connections to Philip F. Anschutz, the “publicity-shy billionaire” who “inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications.”

At CNN, Ariane de Vogue describes Gorsuch’s “stealth” path to the Supreme Court nomination. First, there were the efforts the administration went through to hide the identity of the nominee until it could be revealed in a prime time news event. Then, in the weeks since the announcement, Democrats have been so busy responding to the President’s tweets and executive orders that they have not been able to focus much attention on Gorsuch. “All along, Gorsuch quietly continued his journey to the high court, meeting with more than 70 senators, boning up on constitutional issues, participating in so-called murder boards with his closest colleagues, where they ask him difficult questions to prepare him for his hearings.”

Having met with 72 senators, Gorsuch is now busy “preparing for his Senate showdown,” Politico reports. Senator Kelly Ayotte, who has been guiding him through his meetings with senators, says that Gorsuch has “been spending a lot of time reviewing case law and reviewing his cases and also participating in some mock hearings.”

According to the New York Times, “Democrats have zeroed in on their most prominent planned line of attack: Judge Gorsuch’s rulings have favored the powerful and well connected.” This strategy is something of a departure from the normal line of attack against conservative jurists, which usually centers on social issues, such as abortion. According to Senator Chuck Schumer, “the social issues are always looming out there with any justice. But where [Gorsuch is] particularly vulnerable is in this antiworker, pro-corporate record.” Along with Senator Richard Blumenthal of Connecticut, Schumer held a press conference today, where they were joined by people they presented as having been adversely affected by Judge Gorsuch’s rulings. Schumer reiterated his basic point: “Neil Gorsuch may act like a neutral, calm judge,” the senator from New York declared, “but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest agenda.” If Gorsuch “shows in his answers that he is out of the mainstream as his opinions indicate he very well may be,” Blumenthal said he would “use every tool available, including the filibuster, to oppose him.”

But Politico posted a story emphasizing the lack of unity among Democrats on how to opposed Gorsuch. “Democrats can’t seem to land a punch on Neil Gorsuch — and it’s not even clear they want to.” Some are following Schumer and Blumenthal, staking out a position of staunch opposition and insisting that they will use the filibuster if necessary. But other Democrats are less sure this is the wise path, since the most likely outcome of a Democratic filibuster would be for Republicans to change the rules and no longer allow filibusters of Supreme Court nominees. “Democrats could wave Gorsuch through, reasoning that confirming him won’t change the balance of the court — but the next vacancy would, and they’d be left without a 60-vote threshold as a weapon.”

Along with these attacks, Gorsuch’s nomination continues to attract considerable support. David C. Frederick, a prominent Supreme Court litigator and self-described “longtime supporter of Democratic candidates and progressive causes” wrote an op-ed in the Washington Post expressing his support for the nominee. “Gorsuch — my former law partner and longtime friend — is brilliant, diligent, open-minded and thoughtful. He was the only Supreme Court candidate considered by this administration that I could support. The Senate should confirm him because there is no principled reason to vote no.”

The conservative activist group Judicial Crisis Network has promised to spend ten million dollars lobbying on behalf of Gorsuch and has hired the law firm Covington & Burling, to help in the effort. Former Republican Senator Jon Kyl, now at Covington, will be involved in the lobbying campaign.

The Week Ahead – March 13, 2017

The Supreme Court has no oral arguments scheduled this week. The only official activity on its calendar is its Conference scheduled for Friday, March 17. SCOTUSblog maintains a running list of petitions they are watching. Some of those petitions have been relisted, in some cases multiple times, meaning that they have been on the list for discussion at Conference repeatedly. Often, such a relist is a sign that the Court is seriously considering granting certiorari and/or that a justice is writing an opinion dissenting from the denial of certiorari. (Sometimes such an opinion never sees the light of day because the drafter is able to persuade enough justices to get the four votes needed for a cert grant.) Among the more interesting cases the Court is considering this week is Masterpiece Cake Shop v. Colorado Civil Rights Commission. In this case, the cake shop owner claims that being compelled by Colorado’s anti-discrimination law to make a cake for a same-sex wedding violates his religious belief and is unconstitutional compelled speech. The case has been relisted repeatedly, and at least one justice requested that the full record be sent to the Court. The New Yorker analyzed the case here.

One petition on the list for Friday has been getting some attention from the leftwing the blogosphere. It is a petition for a writ of mandamus seeks to nullify the results of the 2016 presidential election. Petitioners argue that purported Russian hacking into the presidential election constituted a foreign invasion sufficient to invoke Article IV, §4 of the Constitution which requires the federal government to protect states from foreign invasion. The chances of this petition being granted, however, are essentially nil, as this post explains.

Last week, Justice Ginsburg appeared at the Washington National Opera. As The Washington Post reported, it was “an iteration of what has become an established routine, now called ‘Justice at the Opera,’ that involves her giving some remarks, and making some jokes, while acting as a kind of emcee for opera arias and scenes relating, more or less, to legal matters. (On Thursday, the opening number, the scene from “Falstaff” in which two women get the same love letter from the same man, was offered as an example of mail fraud.)”

On Tuesday, the City Club of Cleveland will feature a panel titled “Advice and Dissent: Gorsuch and the Future of an Independent Supreme Court.” The event is open to the public and will discuss President Trump’s nomination of Judge Neil Gorsuch following the Senate’s contentious decision to refuse hearings for President Obama’s nominee, Judge Merrick Garland.

On Wednesday, Justice Alito will be a featured speaker at an Advocati Cristi event at St. Paul Inside the Walls: The Catholic Center for Evangelization at Bayley-Ellard in Madison, New  Jersey. The event is open to the public. SCOTUS Map lists this speaking event and others here.

Be sure to check in with in the middle of the week to see the latest news on Supreme Court nominee Judge Neil Gorsuch.

Weekly Roundup – March 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 the Supreme Court issued orders on Monday. The Court remanded Gloucester County School Board v. G.G., the case about transgender students’ bathroom access, back to the court of appeals for a decision after the Trump administration rescinded the Obama’s administration guidance on the issue, although both parties asked the Court not to do so. In Slate, Mark Joseph Stern speculates about the possible vote-counting among the justices that led to the decision not to hear the case. And Adam Liptak of The New York Times reported that other cases involving transgender rights are moving through the lower courts, so such issues may well find their way to the Supreme Court within the next couple of years.

As we reported on Monday, the Court issued two opinions in argued cases this week. Notably, it held in Pena-Rodriguez v. Colorado that the constitution requires that jury deliberations can be unsealed for investigation if there is clear evidence of racial bias. Justice Kennedy’s opinion for the Court has received mixed reviews. Noah Feldman of Harvard Law School praised it as being “unusually honest and direct about how race in America has historically tainted the fairness of the judicial system.” But an opinion piece in the Wall Street Journal argues that the opinion opened a Pandora’s box of new types of “politically correct” challenges to jury verdicts. And Ryan Owens of the University of Wisconsin points out that the effects of the case could be significant.

Also on Monday, Justice Thomas issued an opinion respecting the denial of certiorari in the case of Leonard v. Texas. Although he agreed with the denial of cert due for procedural reasons, he took the opportunity to express grave concerns about the constitutionality of the current civil forfeiture system, under which people who have not been found guilty — and might even be acquitted or not charged at all — lose their property to the government. For more information on the Court’s orders this week, check out Monday’s Weekly Preview.

Monday marked 160 years since the Supreme Court handed down the decision in Dred Scott v. Sandford, which held that African-Americans were not citizens of the United States, and thus did not have the ability to sue in federal court. Descendants of then-Chief Justice Roger B. Taney issued an apology this week to descendants of Dred Scott. Taney’s great-great-great nephew, Charles Taney IV apologized to the Scott family and all African-Americans, for the “terrible injustice of the Dred Scott decision.” Scott’s great-great-granddaughter, Lynne Jackson, accepted his apology on behalf of the Scott family, thanking them for their “courage and grace.” According to The Baltimore Sun, the families issued a joint statement stating, “the Scotts and the Taneys believe that Americans should learn from their history, not bury their history.” Maryland is considering removing a sculpture of Justice Taney which sits outside their State House, although the families believe the statue should remain. The families are instead suggesting a statue of Dred Scott be created near it, in order to improve the “dialogue” regarding racial “reconciliation and justice.”

President Trump also nominated Noel Francisco as solicitor general of the United States this week. If confirmed, Francisco will need little adjustment time in taking on the responsibility of representing the Trump Administration before the Supreme Court, as he has been the acting solicitor general since January. USA Today reported that Francisco is a former clerk for Antonin Scalia, a former Justice Department official under George W. Bush, and a former partner at Jones Day law firm. USA Today also notes that the job is often called the “10th justice” due to its close working relationship with the Court. According to CNN, the solicitor general position is one of “the most coveted legal jobs in Washington.” The “S.G.” “plays a vital behind the scenes role of determining whether the United States will appeal in thousands of cases each year.” In addition to his temporary position as acting solicitor general, he has argued before the Court as a private attorney.  The Washington Post notes that the solicitor general’s office includes only two political appointees, and it is “small but elite.” Francisco will have to leave his position as acting S.G. in order to prepare for his confirmation hearing, as there is a law in place that limits the president from nominating someone to a position in which they already have in an acting capacity.

Finally, ISCOTUS co-director Carolyn Shapiro published an op-ed in The Hill this week. In the article, she argues that Democratic senators should press Judge Gorsuch to go beyond claims of being a neutral umpire and offers suggestions for how to do so.

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 6

It’s week six of the Gorsuch nomination. His nomination hearings begin on March 20.

The first anniversary of the death of Justice Antonin Scalia (whose seat Gorsuch, if approved, would take) has sparked a new round of comparisons between the two jurists.

Judge Gorsuch, writes Richard Wolf in USA Today, “represent[s] the first generation of Supreme Court justices to have been influenced by Scalia’s rulings, writings, and teachings while still in law school.” Gorsuch’s writing has often been compared to Scalia’s. Mark Sherman of the AP wrote a story on his accessible writing style. Continue reading

The Week Ahead – March 6, 2017

On Monday morning, the Court issued orders and announced two opinions from the bench. The most notable order was its decision in Gloucester County School Board v. G.G. to remand to the lower courts in light of the Trump Administration’s decision to rescind guidance related to transgender students’ bathroom access. This order does not end the litigation, however. Instead, it will be up to the lower courts to now evaluate the statutory and constitutional arguments in the absence of administrative guidance. Both sides had asked the Court to hear the case despite the change in the federal government’s position, as SCOTUSblog described.

In Beckles v. United States, the Court, in an opinion by Justice Thomas, held that void-for-vagueness challenges do not apply to the advisory sentencing guidelines. Justice Sotomayor and Ginsburg concurred in the judgment, and Justice Kagan did not participate. And in Pena-Rodriguez v. Colorado, the Court held 5-3, in an opinion by Justice Kennedy and joined by the four liberal justices, that Colorado’s rule against the admissibility of evidence related to jury deliberations could not stand where a juror stated that he was relying on racial stereotypes or discriminatory views. There were also several opinions issued with the Orders List. Notably, in a unanimous, per curiam opinion, the Court remanded Rippo v. Baker because it said that the lower court used the wrong standard in determining whether there was an unconstitutional risk of bias on the part of a judge in a capital murder trial. (The judge was under investigation and ultimately was indicted for bribery.)

Although the Court will not hear oral arguments this week, two of the justices will maintain high profiles at two separate events, both to be held on Friday. Chief Justice John Roberts will appear at an event in New York commemorating Second Circuit Court of Appeals Judge Henry Friendly, The New York Law Journal reports. Friendly served on the 2nd Circuit from 1959 to 1986, and he was chief judge from 1971 to 1973. Roberts clerked for Friendly from 1979 to 1980. Judge Merrick Garland, Chief Judge of the U.S Court of Appeals for the District of Columbia Circuit and President Obama’s pick to replace Justice Scalia, also clerked for Friendly and will be at the event as well.

Also on Friday, Justice Sotomayor will speak at Stanford University. She will converse with M. Elizabeth Magill, Dean of Stanford Law School, and she will answer questions posed by students. The law school’s Office of the President is hosting the event with senior class presidents of 2017.

Those interested in reliving relatively recent Supreme Court history can catch the finale of the ABC miniseries When We Rise. The series, which is available on Hulu, includes a finale that, as The Advocate explains, focuses on “how activists fought for and won marriage equality in the United States, beginning with the passage of Proposition 8, which sparked a new generation of advocates, and the legal fight leading up to the Supreme Court,” and includes Debra Winger playing Justice Elena Kagan. The legal fight over California’s Proposition 8 (which outlawed same-sex marriage after the California Supreme Court recognized it as required under the state constitution) was the 2013 case of Hollingsworth v. Perry. (The Court did not reach the merits in Hollingsworth, which left standing a lower court determination striking down Proposition 8 on very narrow grounds.) Hollingsworth was decided at the same time as United States v. Windsor, in which the Court struck down the portion of the federal law that prohibited the federal government from recognizing same-sex marriages. Two years later, the Supreme Court declared marriage equality the law of the land in Obergefell v. Hodges.

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 – March 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 Supreme Court issued an important opinion this week in Bethune-Hill v. Virginia State Board of Elections. Bethune- Hill involves a challenge to Virginia’s state legislative districts. Specifically, the plaintiffs alleged that the Virginia General Assembly’s redistricting map was unconstitutional racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision delivered by Justice Kennedy, the Court found that the lower court used the wrong standard when it upheld eleven of the twelve voting districts in question. The district court had improperly limited its determination of whether race was a predominant consideration in those districts by finding them constitutional to the extent they were consistent with traditional districting principles. The Supreme Court remanded the case back to the lower court to reevaluate the role of race without such a restriction and to take into account the intent of the legislature. The Court ruled that the twelfth district was permissible, even though it was drawn with race as the predominant consideration, because it served a compelling government interest in ensuring that minority voters had a better ability to elect their preferred candidate. Adam Liptak from the New York Times recaps the argument here. Lydia Wheeler of the Hill writes about Justice Thomas’ partial dissent. While Thomas agreed with the majority in terms of the outcome, in which the “[Court]. . . [reversed] the District Court’s decision to uphold eleven of the twelve districts at issue,” he dissented from the Majority’s decision to “leave open the question whether race predominated in those districts and, thus, whether they are subject to strict scrutiny.” Thomas states, ”When a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation and strict scrutiny is therefore triggered.”

On Monday, the Court heard oral arguments for Packingham v. North Carolina and Esquivel-Quintana v. Sessions. Because both cases involved men who had had consensual sex with minors, Nina Totenberg of NPR dubbed Monday “sex day at the Supreme Court.” Packingham involves a First Amendment challenge to a North Carolina statute that prohibits registered sex-offenders from accessing websites where minors have accounts. In an op-ed piece for Slate, Perry Grossman explains that while parties acknowledged that the statute was created for the legitimate objective of protecting minors from sex offenders using the same internet websites, the question before the Court focuses on whether the statute is overly broad, “vaguely worded”, and contains “confusing exceptions.” Justice Sotomayor, for example, pointed out that the statute restricts the speech of many registered sex offenders who are in no danger of using the internet to re-offend. Grossman argues that the decision in this case has major implications for First Amendment rights under the Trump administration, stating “[t]he president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t. This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.”

Esquivel-Quintana concerns whether a conviction for “unlawful sexual intercourse with a minor” under a California statute that criminalizes consensual sex between a 20-year-old and a 16-year-old constitutes an aggravated felony of “sexual abuse of a minor” under a federal immigration law and therefore requires mandatory deportation of any immigrant convicted under that statute. The Economist discussed the federal government’s appeal to the Chevron doctrine. The doctrine provides that “when a statute is ambiguous, the courts should defer to the relevant administrative agency’s interpretation thereof rather than issue a definitive judgment themselves.” Here, the government argued, the immigration authorities’ interpretation of the term “sexual abuse of a minor” should receive deference, and at oral argument there was much discussion of the appropriateness and utility of Chevron in the context of a statute involving criminal law. (As article discusses, Chevron is likely to come up during Judge Gorsuch’s confirmation hearing, as he has expressed discomfort with the doctrine.)

On Tuesday, the Court heard Dean v. United States. Dean focused on the scope of judicial sentencing discretion under a particular statute. Douglas Berman from SCOTUSBlog provides an analysis of the argument, concluding that “the tenor of the argument suggested that the court will resolve this case by being, as Kagan put it, “‘strictly textualist here,’” which in this case could mean ruling for the defendant. If Congress wanted to restrict judges’ sentencing discretion, the argument goes, it could have said so much more clearly as it has in other statutes. And on Wednesday, the Court heard arguments for Coventry Health Care of Missouri, Inc. v. Nevils and issued an Coventry Health Care of Missouri, Inc. concerns the Federal Employee Health Benefits Act and whether the act preempts state laws that prohibit insurance companies from claiming the proceeds of personal injury settlements. The transcript for the argument for Coventry Health Care of Missouri, Inc. can be found here.

Also this week, the Court granted certiorari for three cases: Artis v. District of Columbia, involving a statute of limitations issue, Hamer v. Neighborhood Housing, about appellate jurisdiction, and Wilson v. Sellers, evaluating the scope of federal review of state convictions. The complete Order List can be found here.

Although many have speculated about Justice Ginsburg’s health and retirement, this week she reiterated that “I will do this job as long as I can do it full steam.” Ben Schreckinger of Politico discovered what Justice Ginsburg meant when she said “full steam” by attempting to do her physical workout regimen with her personal trainer, whom Ginsburg recently described as “the most important person in her life.” Schreckinger reported back that he felt, “sore, disoriented cranky, [but] I didn’t feel a day over 65.”

Return to ISCOTUS  weekly for the latest news on Judge Gorsuch in our weekly installment of The Gorsuch Report.

The Gorsuch Report—Week 5

It’s been almost a month since Judge Neil Gorsuch was nominated to a seat on the U.S. Supreme Court. Here’s the latest news on his confirmation process.

The most interesting news of the past week concerning the Gorsuch nomination was a plan floated by New Mexico Senator Tom Udall that sounded a lot like a West Wing episode (Season 5, Episode 17). Udall’s plan would involve Trump administration officials striking a deal with a liberal Supreme Court justice who might be looking to replace that justice with Judge Merrick Garland, allowing Obama’s and Trump’s nominees to get seats on the Court. Call it the Gorsuch-Garland Gambit. Udall believes such a plan show the country that the new President is really interested in acting to “unite the country.” (It’s not going to happen, but it’s fun to think about it.)  To no one’s surprise, the White House does not think much of Senator Udall’s plan.

Seven states may be seeing more of Judge Gorsuch in their mailbox this week. The Concerned Veterans for America group sent out a mailer yesterday to Colorado, Florida, Indiana, Missouri, Montana, North Dakota, and West Virginia, the Washington Examiner reports. The mailer encourages people to call their senators and “urge them to confirm Gorsuch.”

In other news, some Republicans who did not support President Trump for the Republican nomination have changed their tune with his choice of SCOTUS nominee. The Washington Times reports that “his [President Trump] selection of Judge Gorsuch has helped patch over differences and cemented bonds with his longtime backers.”

Jeffrey Toobin of the New Yorker suggests six questions senators should ask Gorsuch at his confirmation hearing later this month. Toobin’s suggested topics include abortion, privacy, Brown v. Board of Education, methods of constitutional interpretation, campaign finance, religious liberty, and immigrant rights. Although Gorsuch is unlikely to answer these questions directly, Toobin argues “that shouldn’t prevent the American public from thinking about what the answers ought to be.”

Finally, SCOTUSblog’s Mark Walsh offers a fascinating, detailed account of Judge Gorsuch’s experience as a clerk for Justices Anthony Kennedy and Byron White.

This Day in Supreme Court History—March 1, 2005

On this day in 2005, the Supreme Court decided Roper v. Simmons, one of its most important rulings on the issue of capital punishment. In Roper, the Court held that Eighth Amendment’s prohibition on “cruel and unusual punishments” forbids imposing the death penalty for a crime committed by someone under the age of 18.

In 1994, a Missouri court found Christopher Simmons guilty of a murder; he was seventeen at the time of the crime. After a jury sentenced him to death, Simmons pursued a series of appeals. In 2002, the Missouri Supreme Court stayed Simmons’ execution pending the outcome at the U.S. Supreme Court of Atkins v. Virginia, a case considering the constitutionality of executing offenders determined to be mentally retarded. The Supreme Court would hold in Atkins that executing the mentally retarded violated the 8th Amendment, in part because of their “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” The Missouri Supreme Court pointed to this reasoning from Atkins, along with the recent state-level trend away from executing juveniles, as justification for reducing Simmons sentence to life without parole.

Missouri appealed the reduction in sentence to the U.S. Supreme Court, leading to the historic Roper decision striking down capital punishment for minors.

Writing for the a five-justice majority, Justice Kennedy drew on the same principles that had guided the Missouri Supreme Court. He referenced the growing number of states that were rejecting capital punishment for juvenile offenders as a factor in the Court’s reading of the Eighth Amendment. He also drew a parallel between the reasoning in Atkins and the case at hand, noting, “The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability.”

Particularly controversial was Kennedy’s reference to the fact that the United States was an outlier in the international community on this issue. Most other countries had rejected the practice of executing juvenile offenders. Defending himself against accusations by Justice Scalia and others that references to foreign legal practices had no place in constitutional interpretation, Kennedy argued that “recognition of the aberrant place of United States on the global scene does not lessen our fidelity to the Constitution or our pride in its origins.”