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The Court convened for their November 22 conference on Tuesday but did not announce which, if any, petitions have been granted certiorari.
Lara Bazelon of Slate discusses Chief Justice John Roberts role in a Court with one or more Trump nominees, hinting that Roberts might be a safeguard against an ideologically fueled rescission of landmark cases like Roe v. Wade and Obergefell v. Hodges. “As chief justice, he has a unique responsibility to safeguard the integrity of the third branch of government,” she writes. “If the Supreme Court devolves into an ideological mouthpiece, as overtly political as Congress and the White House, Robert’s decade-long advocacy for judicial restraint and respect for precedent will be read as cant. Roberts himself will be seen as a hypocrite who put his personal preferences above the rule of law. History will view him as a failure. And John Roberts does not intend to fail. He is keenly aware of his institutional role and he cares deeply about legacy—the court’s and his own.”
Amy Frost of SCOTUSBlog investigates whether a single district judge has the ability to issue a nationwide injunction against the federal government programs or regulations. Frost analyzes UCLA Law Professor Samuel L. Bray’s paper “Multiple Chancellors: Reforming the National Injunction”, published November 6, 2016. She describes Bray’s argument that while nationwide injunctions do provide some benefits, such as reducing inconsistency in the administration of federal orders across jurisdictions, the overall effect is largely detrimental. Nationwide injunctions, for example, encourage forum-shopping and make it less likely that the Supreme Court will have the benefit of percolation — consideration of an issue by multiple lower courts.
Amy Howe of SCOTUSBlog provides an in-depth preview of Moore v. Texas, which will be argued on November 29. The defendant in this case, Bobby James Moore, was sentenced to death thirty years ago, but argues that because of his intellectual disability, it would be unconstitutional to execute him. Moore examines whether or not it is a violation of the Eighth Amendment to reject evidence demonstrating that Moore is intellectually disabled under current medical standards and not the standard to determine intellectual disability used in this case – one that was developed in 1992. Tim Shriver, chairman of the Special Olympics, weighs in on the ramifications of the outdated standard in an op-ed for Time, writing “[i]n this case, fiction and stigma [trump] science and the Constitution. Never mind that the Texas factors for determining intellectual disability are not used in any medical or clinical setting in the nation. In fact, they’re not even used elsewhere in Texas. In countless situations where the state is responsible for determining intellectual disability, it uses current scientific standards. The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.”