In USA Today, Richard Wolf reports that the recent Supreme Court term featured an unusual “number of little-guy victories,” in which “the justices ruled in favor of criminal defendants, death-row inmates, immigrants facing deportation, children with disabilities and others in more than a dozen cases pitting individuals against government authorities.” In Education Week, Mark Walsh highlights the “cases with implications for education” in “one of its most significant terms for K-12 education in several years.” At PBS Newshour, Geoffrey Lou Guray offers a “look back at the Supreme Court term that was, and what’s on tap for the Supreme Court term to come.”
In The New York Times, Adam Liptak reports that although “[n]ew justices usually take years to find their footing at the Supreme Court,” “[f]or Justice Neil M. Gorsuch, who joined the court in April, a couple of months seem to have sufficed,” and that in his early opinions, Gorsuch “tangled with his new colleagues, lectured them on the role of the institution he had just joined, and made broad jurisprudential pronouncements in minor cases.” At Truthdig, Bill Blum agrees that “[t]to say that [Gorsuch] hit the ground running would be a gross understatement,” and remarks that “[i]f his initial rulings are any guide, Gorsuch will be even more staunchly conservative than Scalia and nearly as outspoken.”
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The petition of the day is:
16-1285
Issue: Whether an educational setting constitutes a child’s “then-current educational placement” under 20 U.S.C. § 1415(j) simply because it is the placement listed in an individualized education program drafted by the school district, when the parents objected to the portion of the IEP listing that placement, and the child never actually attended that placement.
The petition of the day is:
16-1288
Issues: (1) Whether the inquiry under 35 U.S.C. § 101 requires courts to ignore the specification, as the United States Court of Appeals for the Federal Circuit held, or whether courts should ascertain the true scope of the claims in light of the specification and intrinsic record in determining whether they are drawn to a patent-ineligible concept; and (2) whether an otherwise revolutionary technological breakthrough is not an “inventive concept” under the second step of Alice Corporation Pty. Ltd. v. CLS Bank International merely because the court believed the breakthrough could theoretically be implemented without a computer.
At NPR, Nina Totenberg reports on the debut of Justice Neil Gorsuch, concluding that Gorsuch “is probably even more conservative than the justice he replaced, Antonin Scalia”; she also reports that Gorsuch may soon lose his place as the most junior justice, because “it is unlikely that [Justice Anthony] Kennedy will remain on the court for the full four years of the Trump presidency”: Although Kennedy “long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.” At the Election Law Blog, Rick Hasen notes that a Kennedy retirement at the end of next term would allow the justice “to go out on a high note, deciding the fate of partisan gerrymandering, gay rights, and who knows what else.” At Think Progress, Ian Millhiser asserts that “if Gorsuch gets his way, some very basic civil rights will bow to the Christian right.”
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The court is now on its summer recess. The justices will meet next for their September 25 conference.
On July 7 at 12 p.m. PDT, UC Davis School of Law will host a review of October Term 2016. Speakers will include Kevin Johnson, Carlton Larson, Aaron Tang, Easha Anand and Madhavi Sunder. More information about this event, which will be held at the Sacramento office of Orrick, Herrington & Sutcliffe LLP, is available on the law school’s faculty blog.
Now that October Term 2016 is over and the history of the Supreme Court has turned another page, there’s time to relax and savor the riches of a good book related to the court. Below is a list, by no means comprehensive, of mostly recent books. Included among them are books by the justices themselves, or about their work product, or about their nominations to the court, or about their inner workings, among other things.
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Following Monday’s Supreme Court ruling largely lifting the injunctions against enforcement of the administration’s entry ban, the modified ban took effect last night. In The Washington Post, Carol Morello reports that “the administration took a particularly strict interpretation” of the court’s statement “that only those with ‘bona fide’ relationships, such as close family members, can enter the country.” At Take Care, Amir Ali argues that the “new guidelines for implementing the Supreme Court’s travel ban compromise” suggest that “the Administration is not going to make a good faith effort to effectuate the Court’s order.” Additional commentary on the guidelines comes from Adam Cox and Ryan Goodman at Just Security, Leah Litman at Take Care, and Marty Lederman at Just Security here and here. David Cole comments on the travel-ban case in a podcast for The Nation.
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The petition of the day is:
16-1275
Issue: Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings).
Stephen McAllister is the Solicitor General of Kansas and the E.S. & Tom W. Hampton Distinguished Professor of Law at the University of Kansas School of Law.
The Supreme Court this term demonstrated its continuing and increasing discomfort with the death penalty, at least as that sentence is often imposed in America. For the most part, the court went out of its way to reverse the death sentences it considered, and certainly gave little deference to state court decisions.
Most notably demonstrating that proposition are two decisions in cases from Texas. In Buck v. Davis, in an opinion written by Chief Justice John Roberts, the Supreme Court leaped multiple, virtually insurmountable procedural obstacles and standards to allow lower courts to reach the merits of a challenge that indisputably raised concerns, though the concerns were created by the defendant’s own lawyer, not by any action of the state or the prosecutors. True, it is not ideal to have a defendant’s own expert testify that the defendant is more likely to be dangerous in the future because of the defendant’s race, but the procedural posture of the case made that issue very difficult to reach. The court nonetheless found a way.
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