The Week Ahead – February 20, 2017

The February sitting of the Supreme Court will begin on Tuesday, February 21, as the Court will be observing President’s Day on Monday. Orders from Friday’s Conference are expected on Tuesday, and opinions may be handed down on Wednesay.

On Tuesday, the Court will hear arguments in Hernandez v. Mesa and McClane Company v. EEOC. Hernandez concerns the shooting death of Sergio Adrian Hernandez Guereca, a fifteen-year old Mexican national, and whether the border patrol agent who shot him on Mexican territory violated the Fourth Amendment protection against unjustified deadly force. (There are also other issues presented.) Orin Kerr at the Washington Post provides a pre-argument analysis of Hernandez. “One of the most important questions for the future of the Fourth Amendment is whether non-U.S. persons get Fourth Amendment rights abroad,” he writes. He notes that important questions of, for example “what kind of Internet surveillance is permitted hinges on the question.” Yet the case presents the Fourth Amendment question in a factual “setting that appears to implicate almost none of the real stakes of the answer.”

McClane, the second case being argued on Tuesday, considers EEOC subpoenas and whether or not circuit courts should review them de novo (without deference to the district court’s decision) or review them deferentially to the district court’s decision, as is the practice of all circuit courts except for the Ninth Circuit.

On Wednesday, the Court will hear arguments in Kindred Nursing Centers v. Clark. Kindred concerns the Federal Arbitration Act and whether it precludes a state supreme court from holding an arbitration agreement unenforceable based on the lower court’s skepticism of the benefit presented by pre-dispute arbitration agreements. Ronald Mann from SCOTUSBlog provides an argument preview. He also explains that although the Court has recently decided similar arbitration cases in favor of upholding arbitration agreements, this will be the first such case presented to the 8-member Court. Nonetheless, he suggests that the case is likely to come out the same way. Although many of these cases were decided 5-4, with Justice Scalia in the majority (and often as the author), the last such cases were not so close. Indeed, Mann notes that Justice Breyer “consumed a good bit of last year’s argument in DIRECTV[, Inc. v. Imburgia], musing about the problems that the justices face when lower courts intentionally flout unpopular lines of cases like the court’s arbitration cases.”

On Thursday, Justice Ginsburg will speak at the Linser Auditorium at The George Washington University to discuss her most recently published book, My Own Words, along with book contributors Mary Hartnett and Wendy W. Williams. My Own Words features a selection of her writings and speeches spanning her life and career, and is the first book that Ginsburg has published since her appointment to the Court in 1993.

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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