Weekly Roundup – February 24, 2017

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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.”


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