Weekly Roundup – November 11, 2016

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.)

Commentary about the effect of the election on the Court has begun. Linda Greenhouse of the New York Times discusses the possible repercussions on the Supreme Court, including a discussion of the 21 possible nominees that Trump’s campaign issued in September. Emily Bazelon of the New York Times also weighs in on the issue describing the Republican approach to nominations to the Court as “a new kind of hardball.”

The Court also heard argument in four cases this week. On Monday, the question before the Court in NLRB v. SW General was the scope of a provision that bars the president from nominating someone who is serving in an acting capacity to fill the job on a permanent basis unless the acting official also served as the first assistant to the vacant position for at least 90 days in the year before the job became vacant. The provision makes it more difficult for the president to evade the confirmation process for his appointees. The question here involves the scope of the provision. SW General, the respondent here, is arguing for broader scope, invalidating the appointment of the current acting general counsel of the National Labor Relations Board. Justice Anthony Kennedy told Shay Dvoretzky, who represents SW General, that that he had a “very strong” argument based on the text: the reference by the provision at issue to “a person” who serves in an acting capacity “under this section,” e to be acting appointeeswhich could be construed as applying the restriction on nominating someone who is serving in an acting role to all categories of individuals who are eligible, but overall the justices seemed divided. Lydia Wheeler of The Hill discusses other highlights from Monday’s arguments.

On Tuesday, the Court heard arguments in Bank of America v. Miami and Wells Fargo v. Miami, which are consolidated. The case presents the issue of whether Congress required that a Fair Housing Act plaintiff plead more than just injury-in-fact when it limited lawsuits to “aggrieved person(s)”; and whether proximate cause requires more than the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through a chain of contingencies. Attorney Neal Katyal, representing the banks, told the justices Tuesday that a ruling for the cities would create an “unlimited theory of liability.” Not only could thousands of cities bring similar lawsuits, he said, but many other plaintiffs, including landlords, could also bring lawsuits. Amy Howe of SCOTUSblog discusses the arguments further in her argument analysis. And ABC News notes that “some of the justices said they worried about opening the courthouse door to shop owners, gardeners and other companies that might lose business as a result of home foreclosures.”

Also on Tuesday, the Court heard Lightfoot v. Cendant Mortgage Corp. The issue in the case is whether a lawsuit has federal jurisdiction merely because the Federal National Mortgage Association, also known as Fannie Mae, is a party. Early in the presentation of Joshua Rosenkranz on behalf Monique Lightfoot, the plaintiff suing Fannie Mae, Justice Ruth Bader Ginsburg read a passage from the opinion in American National Red Cross v. S.G. & A.E. that, in her view, “seems to say if you authorize suit in federal court, that’s it. Specifically mentioning federal court suffices to confer federal jurisdiction.” SCOTUSblog breaks down the arguments on either side, here.

The Court heard its final arguments of the week on Wednesday in Lynch v. Morales-Santana. The court must decide whether Congress’s decision to impose differing gender-based physical-presence (in the United States) requirements on citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection. More specifically, the challenged law grants citizenship to the child who is born abroad to an unmarried US citizen mother if the mother lived in the United States for one continuous year, while a child born abroad with an unmarried US citizen father receives citizenship only if the father lived in the United States for at least ten years — five of them after the age of 14. The Court previously considered this question but split 4-4 (with Justice Kagan recused) in Flores-Villar v. United States. Because even without Justice Kagan, there were four votes in favor of finding the differential treatment unconstitutional, it is likely that there will now be five votes for that position.

In this week’s argument, Deputy Solicitor General Edwin Kneedler, arguing on behalf of the United States, said that the different treatment of unmarried mothers and fathers served two interests: ensuring that U.S. citizens have sufficient ties to the United States and avoiding a scenario in which the children of U.S.-citizen mothers are born “stateless” – meaning, with no citizenship at all. Justice Sonia Sotomayor asked Kneedler why unmarried U.S.-citizen fathers would have less of a connection to the United States than unmarried mothers. And Justice Elena Kagan asked him why the government couldn’t achieve those goals using “entirely gender-neutral language” that would apply to both unmarried fathers and unmarried mothers. Scott Michelman of Slate.com explains how this case “provides a small but meaningful snapshot of how sex-based laws written in that very era [1950s] are viewed by the branch of government most likely to provide a check on the new president’s power.” As SCOTUSblog points out, the key precedents at issue here are from cases argued by Ruth Bader Ginsburg herself. The case also requires the Court to consider the appropriate remedy if it does find the statute unconstitutional.

Finally, in other Supreme Court news, on Monday, the Court denied certiorari in OXY USA Inc. v. Schell. This case analyzes whether the fact that a pending appeal “played no significant role” in an appellant’s voluntarily mooting a case, Alvarez v. Smith, is the only factor in determining whether to vacate a lower court’s judgment or whether a party must make an additional showing of compelling circumstances favoring vacatur.

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