Weekly Roundup – November 4, 2016

This week, the Court heard five oral arguments. On Monday, the Court was presented with two cases: Fry v. Napoleon Community Schools and Star Athletica v. Varsity Brands. On Tuesday, the Court analyzed State Farm Fire & Casualty v. U.S. ex rel Rigsby and SCA Hygiene Products v. First Quality Baby Products. And on Wednesday, the Court listened to Venezuela v. Helmerich & Payne International. Of these cases, Star Athletica, and Venezuela are particularly interesting.

In Star Athletica, controversy erupted over cheerleader uniforms and whether copyright law protects the Varsity Brand’s uniform designs from being copied by Star Athletica.

Varsity Brands contends their uniform designs are protected from being replicated by Star Athletica because, though they are “useful articles” as defined by 17 U.S.C. § 102(a)(5), they qualify for copyright protection because they are “pictorial, graphic, and sculptural works.” Star Athletica contends that the uniform designs pertain to the utility of the uniforms; when an object’s design pertains solely to its function, it is not typically eligible for copyright protection. Adam Liptak of the New York Times provides an analysis of Monday’s argument, noting Justice Sotomayor’s observation that this case could have an impact on “knock-off” merchandise. Mark Walsh at SCOTUSblog likened the oral arguments to an episode of “Project Runway” when he analyzed the justices’ lines of questioning about whether ertain design elements of the uniforms could be copyrighted.

In Venezuela, the Court questioned whether the current standard for determining if U.S. courts have jurisdiction over a lawsuit against a foreign government is sufficient, or if a more substantial standard should be applied. Though lawsuits against foreign governments typically cannot be brought in U.S. courts under the Foreign Sovereignties Immunities Act, its “expropriation” exception means foreign governments can be sued if they illegally seize property with a commercial tie to the United States. In this case, Venezuela argued for a motion to dismiss for lack of jurisdiction because the exception does not apply and U.S. courts have no jurisdiction to hear the case. Currently, the standard applied to determine if a suit filed against a foreign nation will survive a motion to dismiss for lack of jurisdiction is simply to determine if the suit is “frivolous” or “insubstantial.” Amy Howe at SCOTUSblog provides an analysis of Wednesday’s argument and describes the justices’ concern about how the outcome of this case might impact foreign relations into the future.

In other Court news, on October 28, the Court granted the petition for Gloucester County School Board v. G. G. This case discusses whether Gloucester School District committed a sex discrimination-based violation of Title IX when school officials refused to let Gavin Grimm, a transgender student, use the school restroom that corresponded to his gender identity. The issue at hand includes whether or not the Department of Education has correctly interpreted Title IX to extend to protect transgender students.

Dahlia Lithwick of Slate addresses how the future composition of the Court will have negative implications for abortion rights, specifically due to pledges from Senate Republicans to stonewall any nominees from a Democratic president. Recent comments from Sen. Richard Burr (R-NC) suggest heavy resistance in the Senate to any future nominee from a potential President Clinton, stating: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” The three oldest members of the Court, Justices Breyer, Ginsburg, and Kennedy all voted in favor of abortion rights in Whole Women’s Health v. Hellerstedt last June, and Ginsburg and Breyer have voted to protect abortion rights;  Lithwick argues that future openings following their departure could dramatically shift how the Court votes on abortion rights because of  the Republican Senate refusal to confirm any nominees from a Democratic president.

Adam Feldman at Empirical SCOTUS provides a quantitative analysis of gender balance in the Supreme Court, finding that for the first time in Supreme Court history, more women spoke than men in oral arguments, finding that during arguments for Venezuela, six women spoke as opposed to four men.

Finally, Alice Miranda Ollstein from Think Progress discusses how a recent Court decision not to stay enforcement of some Ohio laws in a lawsuit from the Northeast Ohio Coalition for the Homeless could have an impact on the upcoming election. The suit sought to challenge an Ohio election law that allows the state to throw out any provisional ballot with minor errors or deviations from state record (i.e., if the voter signs his name “Bill” but the state record has him as “William”) By rejecting this request for emergency relief, the Court has allowed this policy to persist, meaning thousands of ballots could potentially be rejected in Ohio. CNN discusses this issue further, here.

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