OT 2014

The Week Ahead – November 14, 2016

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

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

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

This Day In Supreme Court History

This Day in Supreme Court History—November 12, 1975

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

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

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

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

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

OT 2014, Weekly Roundup

Weekly Roundup – November 11, 2016

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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.)

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

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

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

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

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

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

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

OT 2016, Weekly Preview

The Week Ahead – November 7, 2016

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In its sixth week of the October 2016 term, the Supreme Court will hear arguments in five cases. On Monday, the Court will hear National Labor Relations Board v. SW General, Inc., the outcome of which will affect the next President’s right to appoint senior officials to temporarily fill vacancies in the executive branch. The case looks at the Federal Vacancies Reform Act, which provides that someone who is nominated to fill a vacant position requiring Senate confirmation “may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy.” Amy Howe of SCOTUSblog previews the argument, here. Depending on the outcome of the election, this case could have significant implications. More specifically, if Hillary Clinton wins the presidency and the Republican party retains control of the Senate, the Senate could decline to confirm many of her executive branch nominees, as some Republicans are threatening to do with respect to her judicial appointments.

On Tuesday, the Court will hear two oral arguments. In Bank of America v. Miami and Wells Fargo v. Miami, which are two consolidated cases, Miami sued the banks, alleging that they had violated the Fair Housing Act by discriminating against African-Americans and Latinos when issuing mortgages and by making predatory loans to them. And in doing so, the city argued, the banks caused the city to lose money due to the effects of the mortgage foreclosure crisis. The case presents the issue of whether Congress required that a Fair Housing Act plaintiff plead more than just injury-in-fact when it limited lawsuits to “aggrieved person(s)”; and whether proximate cause requires more than the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through a chain of contingencies. The Miami Herald describes the city’s claims, here, and SCOTUSblog breaks down the case and discusses the history of the Court with the Fair Housing Act, here.

Lightfoot v. Cendant Mortgage Corp. presents the issue of whether a lawsuit has federal jurisdiction merely because the Federal National Mortgage Association, also known as Fannie Mae, is a party. Fannie Mae’s charter authorizes Fannie Mae to sue and be sued “in any court of competent jurisdiction, State or Federal.” Monique Lightfoot, who is suing Fannie Mae, does not want the suit to be in federal court. She argues that the charter addresses only Fannie Mae’s capacity as a separate entity with the power to litigate. Ronald Mann of SCOTUSblog explains that one interesting aspect of this case is that the Solicitor General is appearing in support of Lightfoot instead of the federally-chartered Fannie Mae.

Wednesday the court will hear arguments in Lynch, Attorney General v. Morales-Santana. The federal government is seeking to defend the constitutionality of less favorable treatment, for purposes of U.S. citizenship, of a child born abroad whose father is a U.S. citizen than the treatment given to a child born abroad whose mother is a U.S. citizen. The court must decide whether Congress’s decision to impose differing gender-based physical-presence requirements on citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and whether the court of appeals erred in conferring citizenship on Morales-Santana. The Atlantic discusses how this case could affect a potential Trump presidency, given his stance on immigration thus far in his campaign.

With the election coming up on Tuesday, emergency litigation is already finding its way to the Supreme Court. Sunday night, the Ohio Democratic Party asked the Court to reinstate a district court order barring the Trump campaign from engaging in voter intimidation. The Sixth Circuit had stayed that order. More on the case is here. Finally, peer into Bloomberg author Noah Feldman’s thoughts on how this election could affect the Supreme Court. He believes, “[l]ots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best of the U.S. Supreme Court.

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

Justices

A Public Interview with Justice Kagan

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Post by Anna Jirschele, ISCOTUS Editor and 2L at Chicago-Kent College of Law.

The annual Equal Justice Works Conference and Career Fair took place last weekend in Washington, D.C., and the guest of honor was the Supreme Court’s very own Justice Elena Kagan. Often interviews with Supreme Court justices center on the work of the Supreme Court. Justice Kagan’s interview at the EJW Conference was different. For that hour, she was just Elena Kagan discussing her life story.

Justice Kagan was born in raised in New York City. Her father was an attorney and her mother was a teacher. She joked that her mother was always her toughest critic when it came to writing and she instilled in her the importance of “edit, edit, edit.” The more you edit, the better your work gets, she said. Justice Kagan went on to discuss the importance of her own education. “I went to law school for all the wrong reasons,” she confessed. But once at Harvard Law School, she found her passion. She realized that with a law degree she could truly make a difference in the world and help people.

Throughout her interview, Justice Kagan spoke in an understated way with sincerity and humor about her accomplishments–among them becoming the first female dean of Harvard Law and the first female Solicitor General of the United States. She offered a myriad of advice to an audience packed with law students hanging on her every word. She believes law students are “too risk averse” and too quick to say no to an opportunity because “that’s not in my plan,” noting that the best opportunities are the ones you didn’t expect. She never spent more than six years in a position because she has wanted to constantly be trying something new where the learning curve is steep. When asked by the moderator about her current job being a lifetime appointment, Justice Kagan joked, “well, it’s not like you can say ‘call back later’ to the President when he calls.” The audience erupted in laughter when she said she’s lucky she really likes her position serving on the High Court.

Justice Kagan began discussing her tenure as the junior Justice on the Court with a story about frozen yogurt. When she first arrived, she was asked to serve on the committee overseeing the Court’s cafeteria. Her first order of business was to secure a frozen yogurt machine for the cafeteria. She soon became known as the “frozen yogurt Justice.”

All jokes aside, Justice Kagan could not have spoken more highly about her colleagues on the Court. She noted that you can never take anything personally because you have to have good relationship with your colleagues and work with them on the next case. She described her colleagues as “committed and working in good faith.” And as much as “you’d like to win out of competition,” every justice is “trying to get it right as much as you are.” She reminisced about her relationship with late Justice Scalia by saying “he truly was my buddy.”

Perhaps the best part of her interview, was when the moderator asked Justice Kagan what she would would like her legacy to be. “Oh, the legacy will take care of itself,” she answered. “I’ll leave that to other people.” All she wants to do is “give it my all, work as hard as I can on every case to get it right, and have a high standard for my work.” She insisted that the key to great career is to find something that makes you “eager to go to work because it’s challenging.” Find something that “strikes you as meaningful, exciting, and fun.”

OT 2016, Weekly Roundup

Weekly Roundup – November 4, 2016

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This week, the Court heard five oral arguments. On Monday, the Court was presented with two cases: Fry v. Napoleon Community Schools and Star Athletica v. Varsity Brands. On Tuesday, the Court analyzed State Farm Fire & Casualty v. U.S. ex rel Rigsby and SCA Hygiene Products v. First Quality Baby Products. And on Wednesday, the Court listened to Venezuela v. Helmerich & Payne International. Of these cases, Star Athletica, and Venezuela are particularly interesting.

In Star Athletica, controversy erupted over cheerleader uniforms and whether copyright law protects the Varsity Brand’s uniform designs from being copied by Star Athletica.

Varsity Brands contends their uniform designs are protected from being replicated by Star Athletica because, though they are “useful articles” as defined by 17 U.S.C. § 102(a)(5), they qualify for copyright protection because they are “pictorial, graphic, and sculptural works.” Star Athletica contends that the uniform designs pertain to the utility of the uniforms; when an object’s design pertains solely to its function, it is not typically eligible for copyright protection. Adam Liptak of the New York Times provides an analysis of Monday’s argument, noting Justice Sotomayor’s observation that this case could have an impact on “knock-off” merchandise. Mark Walsh at SCOTUSblog likened the oral arguments to an episode of “Project Runway” when he analyzed the justices’ lines of questioning about whether ertain design elements of the uniforms could be copyrighted.

In Venezuela, the Court questioned whether the current standard for determining if U.S. courts have jurisdiction over a lawsuit against a foreign government is sufficient, or if a more substantial standard should be applied. Though lawsuits against foreign governments typically cannot be brought in U.S. courts under the Foreign Sovereignties Immunities Act, its “expropriation” exception means foreign governments can be sued if they illegally seize property with a commercial tie to the United States. In this case, Venezuela argued for a motion to dismiss for lack of jurisdiction because the exception does not apply and U.S. courts have no jurisdiction to hear the case. Currently, the standard applied to determine if a suit filed against a foreign nation will survive a motion to dismiss for lack of jurisdiction is simply to determine if the suit is “frivolous” or “insubstantial.” Amy Howe at SCOTUSblog provides an analysis of Wednesday’s argument and describes the justices’ concern about how the outcome of this case might impact foreign relations into the future.

In other Court news, on October 28, the Court granted the petition for Gloucester County School Board v. G. G. This case discusses whether Gloucester School District committed a sex discrimination-based violation of Title IX when school officials refused to let Gavin Grimm, a transgender student, use the school restroom that corresponded to his gender identity. The issue at hand includes whether or not the Department of Education has correctly interpreted Title IX to extend to protect transgender students.

Dahlia Lithwick of Slate addresses how the future composition of the Court will have negative implications for abortion rights, specifically due to pledges from Senate Republicans to stonewall any nominees from a Democratic president. Recent comments from Sen. Richard Burr (R-NC) suggest heavy resistance in the Senate to any future nominee from a potential President Clinton, stating: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” The three oldest members of the Court, Justices Breyer, Ginsburg, and Kennedy all voted in favor of abortion rights in Whole Women’s Health v. Hellerstedt last June, and Ginsburg and Breyer have voted to protect abortion rights;  Lithwick argues that future openings following their departure could dramatically shift how the Court votes on abortion rights because of  the Republican Senate refusal to confirm any nominees from a Democratic president.

Adam Feldman at Empirical SCOTUS provides a quantitative analysis of gender balance in the Supreme Court, finding that for the first time in Supreme Court history, more women spoke than men in oral arguments, finding that during arguments for Venezuela, six women spoke as opposed to four men.

Finally, Alice Miranda Ollstein from Think Progress discusses how a recent Court decision not to stay enforcement of some Ohio laws in a lawsuit from the Northeast Ohio Coalition for the Homeless could have an impact on the upcoming election. The suit sought to challenge an Ohio election law that allows the state to throw out any provisional ballot with minor errors or deviations from state record (i.e., if the voter signs his name “Bill” but the state record has him as “William”) By rejecting this request for emergency relief, the Court has allowed this policy to persist, meaning thousands of ballots could potentially be rejected in Ohio. CNN discusses this issue further, here.

To say on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter!

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—November 3, 1884

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On this day in 1884 the Supreme Court held in John Elk v. Charles Wilkins that a Native American born in the United States could be denied the right to vote.

In 1880, John Elk, a Winnebago Indian, tried to register to vote in Omaha, Nebraska. Charles Wilkins, the local registrar of voters, denied his application. Elk brought suit against Wilkins, arguing that (a) he was a citizen under the Fourteenth Amendment, because he had been born in the United states and had renounced his allegiance to his tribe; and (b) as a citizen, the Fifteenth Amendment guaranteed him the right to vote.

On Nov. 3, 1884, in a 7-2 decision, the Supreme Court ruled  against Elk. “The question,” wrote Justice Horace Gray for the Court, “is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.” Gray conclude the answer to this question was no. Under the original Constitution, tribal members “owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian.” The only way a member of an Indian tribe could become a citizen of the United States was through the naturalization process. And the passage of the Fourteenth Amendment, Gray concluded, did nothing to change this.

The national legislation has tended more and more toward the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself.

Justice John Marshall Harlan wrote a dissent that concluded with the kind of ringing racial egalitarian rhetoric that made him famous as the “Great Dissenter” of his era:

If [Elk] did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it, and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

It would not be until 1924 that Congress extended citizenship to all Native Americans born in the United States.

OT 2016, Weekly Preview

The Week Ahead in the Supreme Court — October 31, 2016

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On Monday the Court will hear arguments in Fry v. Napoleon Community Schools and Star Athletica v. Varsity Brands. In Fry, the court will decide if those seeking damages by suing under the Americans with Disabilities Act or the Rehabilitation Act, must exhaust administrative remedies before bringing a lawsuit. Stacy and Brent Fry brought a monetary damages suit against their daughter’s school after the school refused to allow their daughter, who has cerebral palsy, to bring her service dog to school with her. A federal district court dismissed their claim because the Frys had not pursued alternative remedies; a federal appeals court upheld the lower court’s decision. The Frys are represented by the ACLU and are supported by the Obama administration. Check out US News for more on the case.

In Star Athletica, also being argued on Monday, the court will decide if certain patterns on cheerleading uniforms are copyrightable. Varsity Brands, the leader manufacturer of cheerleading apparel, has copyrights on various designs that identify cheerleading outfits. Star Athletica is contesting Varsity’s ownership of the designs, arguing that that the designs are generic in nature and do not fit this criteria. The New York Times breaks down the case, here. And Bloomberg discusses the legal issues—and the coincidence of this case being argued on Halloween.

On Tuesday, the Court will hear arguments in a case involving insurance giant, State Farm. In State Farm Fire & Casualty Co. v. United States, ex rel. Rigsby, the Court decides whether a case brought under the False Claims Act should be dismissed if the party bringing the suit discloses it before it is served on the defendant. The lower court decided that State Farm violated the False Claims Act when it submitted as flood claims damage that in fact resulted from wind damage (federal insurance policy covered flood damage, but not wind damage). State Farm argues that the whistleblower who brought the claim violated the act’s “seal” requirement by disclosing the complaint before the court ordered it served on State Farm. Ronald Mann of Scotusblog discusses this case, breaking down the False Claims Act and what to expect for argument come Tuesday.

The Court will also hear arguments in a patent infringement lawsuit this week. In SCA Hygiene Products v. First Quality Baby Products, the Court will have to decide if laches (unreasonable delay in bringing a lawsuit) can bar a patent infringement claim occurring in the six-year statute of limitations period. Martha Neil of the ABA Journal discusses the history of this case in the Federal Circuit, here.

The final case the Court will hear this week is Venezuela v. Helmerich & Payne. Venezuela has asked the Court to review the U.S. Court of Appeals for the DC Circuit’s decision reversing the grant of summary judgment for Venezuela. The country was accused of illegally taking control of Helmerich & Payne’s oil drilling rigs after they did not renew their contract with the country. Venezuela is arguing that they are protected from being sued in U.S. court by the Foreign Sovereign Immunities Act. Amy Howe of Scotusblog details the arguments on either side of this debate, here.

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

OT 2014, Weekly Roundup

Weekly Roundup–October 28, 2016

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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 Court did not hear any arguments, but the Justices are meeting to discuss cert petitions at Conference on October 28. SCOTUSblog reports on some notable petitions, including Packingham v. North Carolina, Purcell v. Arizona, and Sireci v. Florida, which have been repeatedly relisted for Conference.

Senator Ted Cruz (R-Texas) recently suggested that the Senate Republicans might block any nominee from a Democratic president indefinitely. Cruz, speaking at a campaign rally for U.S. Senate candidate Darryl Glenn in Colorado, argued that there is a “historical precedent for a Supreme Court with fewer justices” and that “Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the Court to do its job.” Burgess Everett of Politico discusses these comments and Democratic responses. And as ISCOTUSnow noted earlier this week, the Court appears to be avoiding scheduling the most high profile cases up for consideration this term.

Mark Sherman from the Associated Press reports on a recent Clarence Thomas discussion at the Heritage Foundation. Thomas criticized the Senate confirmation process for Supreme Court nominees as “broken in some ways” and described the erosion of our political civility: “”We have decided that rather than confront disagreements, we’ll just simply annihilate the person who disagrees with me. I don’t think that’s going to work in a republic, in a civil society.”

Also this week, Dahlia Lithwick of Slate discusses how the Supreme Court might have a diminished ability to intervene in future disputed presidential elections. She argues that increasing partisan polarity rising in the other two branches of government has delegitimized the role of the Court in deciding contested elections.

Finally, Mark Walsh of SCOTUSblog published an interview with lifelong Cubs fan, the retired Justice John Paul Stevens. Stevens, 96, will be attending game four of the World Series on Saturday. The first time Stevens ever visited Wrigley Field was during the 1929 World Series, when the Cubs fell to the Philadelphia Athletics. Justice Stevens, forever the optimistic Cubs fan, concludes with a prediction: “Well, I thought they were going to win in four straight,” he said. “I guess I was wrong on that. I’m confident that they’ll pull it through. They have an awfully good team, and I think they’ll do it in the next four games.”

Death Penalty, This Day In Supreme Court History

This Day in Supreme Court History: October 26, 2010

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On this day in 2010, the Supreme Court vacated an emergency restraining order preventing the execution of Jeffrey Landrigan. Arizona executed him that day.

Landrigan was convicted of first degree felony murder in 1990 and sentenced to death. After years of unsuccessful appeals, on September 15, 2010, the Arizona Supreme Court issued a warrant of execution and set the execution date for October 26, 2010.

Landrigan was sentenced to die by lethal injection, which would be administered in accordance with the three-drug lethal injection method that the U.S. Supreme Court in Baze v. Rees (2008) had deemed constitutionally acceptable under the 8th Amendment. The Court in Baze held that the three-drug protocol did “not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.”

Landrigan’s last-minute appeal was based on questions concerning the first drug of the Baze-approved three drug protocol, sodium thiopental, which was supposed to induce unconsciousness and prevent pain during the rest of the execution. On October 21, 2010, Landrigan’s lawyer filed a civil rights complaint demanding information about the sourcing of the drug. Anti-death penalty activists had pressured drug manufacturers to stop producing sodium thiopental, resulting in a nationwide shortage of the anesthetic. In light of the shortage, Landrigan’s counsel sought to compel Arizona to identify the source and nature of the drug they intended to use on Landrigan. Arizona revealed that it had acquired the sodium thiopental from a foreign manufacturer and the particular drug had not been approved by the Food and Drug Administration. A district court in Arizona granted the temporary restraining order on October 25; the 9th Circuit affirmed the order the following day.

In its October 26 order vacating the temporary restraining order, the Court explained: “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm…But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’.” Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application to vacate the temporary restraining order. Landrigan was executed hours after the Court’s order.

The Court continued to struggle with the consequences of the drug shortages at issue in Landrigan’s appeals. After anti-death penalty activists succeeded in getting sodium thiopental off the market, states turned to different drugs as part of their three-drug protocol for executions. This brought more legal challenges and another Supreme Court case. In Glossip v. Gross (2015), a  five-justice majority upheld a new three-drug protocol. The most discussed aspect of the Court’s Glossip ruling was not the holding, however, but the separate dissenting opinion of Justice Breyer in which he questioned whether the death penalty itself violates the 8th Amendment.