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about transgender students’ bathroom access, back to the court of appeals for a decision after the Trump administration rescinded the Obama’s administration guidance on the issue, although both parties asked the Court not to do so.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.”


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