Weekly Roundup – April 7, 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 big news this week involved the Senate’s action on Judge Neil Gorsuch’s nomination to replace Justice Scalia. This morning, the Senate confirmed Gorsuch on a 55-45 vote. Three Democrats (Joe Donnelley of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia) joined all Republicans in voting yes. Roll Call reports that this voting breakdown means that Gorsuch received the smallest number of opposition party votes of anyone on the Court. Presumably, Gorsuch will be sworn in immediately and will join the Court next week to discuss cert petitions at Conference and on April 17 to hear oral argument. (The Court’s calendar is here.)

The Gorsuch nomination engendered a major procedural upheaval in the Senate — the so-called nuclear option. As The New York Times explained, after more than 41 Democrats voted against ending debate on the nomination — thus successfully maintaining a filibuster, which ordinarily can be ended only with at least 60 votes — the Republican-controlled Senate changed its rules so that only 51 votes are needed to end debate on a SCOTUS nomination. Although Democrats had made a similar rules-change during the Obama presidency for presidential executive-branch appointees and lower court judges, they had pointedly left the filibuster intact for SCOTUS nominations. On Thursday, on a straight party-line vote, the Republicans eliminated that supermajority requirement.

Not surprisingly, numerous commentators have weighed in on the likely effects of the Senate’s action on the Supreme Court going forward. ISCOTUS co-director Carolyn Shapiro argues that in the long run, eliminating the filibuster may allow Democrats to appoint more liberal justices. Others, like Scott Lemieux, predict an increasingly large conservative majority on SCOTUS. Jonathan Adler argues that because the absence of the filibuster will make it harder to stop a nomination, incentives to obstruct will decrease and presidents of both parties will be freer to nominate justices with less traditional resumes.

Although the Supreme Court did not hear argument this week, it did hand down two unanimous decisions on Monday. In Chief Justice Robert’s Dean v. United States opinion, the Court decided that a judge, when calculating the sentence for a predicate offense, does not have to ignore the fact that the defendant will serve mandatory minimums imposed under 18 U.S.C. § 924(c). The Court reversed and remanded a decision from the Eighth Circuit Court of Appeals that Levon Dean’s sentence of more than 33 years was reasonable. The Court reasoned that a) “sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence” and b) § 924(c) does not specify how long the sentences should be for predicate offenses nor does it specify what courts can consider when determining those sentences. Above the Law explores what prison time accomplishes and “when is enough enough?”

In McLane Co., Inc. v. Equal Employment Opportunity Commission, the Court held that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The Court reasoned three main conclusions: (1) reviewing for abuse of discretion is a “longstanding practice” of appeals courts, (2) district judges’ expertise is well suited to decide whether evidence sought is relevant to a specific charge or whether a subpoena is unduly burdensome in light of circumstances, and (3) deferential review will streamline the litigation process by freeing appellate courts from the obligation of reconsidering evidence and facts that district courts have already considered. The National Law Review discusses the case in more detail.

The Court also granted certiorari in two cases: Jesner v. Arab Bank, PLC and Ayestas v. Davis. The Court will likely revisit its 2013 Kiobel v. Royal Dutch Petroleum decision in order to decide if, under the Alien Tort Statute, corporations can be held liable for human rights violations, the New York Law Journal reports. In Ayestas, the Jurist explains that the Court will address a defendant’s right to federal funding for an expert for a habeas petition.


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