Thursday round-up

Yesterday the Supreme Court heard argument in Benisek v. Lamone, a high-profile partisan-gerrymandering challenge by Republican voters to a Democratic-leaning congressional district in Maryland. Amy Howe analyzes the argument for this blog; her analysis first appeared at Howe on the Court. At Fox News, Bill Mears reports that “a majority seem[ed] to believe Maryland Democrats were overly influenced by politics in carving a congressional district favoring their party,” “[b]ut the justices struggled … to unite behind a ‘manageable standard’ … to determine when an expected level of partisanship impermissibly crosses a constitutional line.” Additional coverage of the oral argument comes from Kevin Daley at The Daily Caller, Jess Bravin for The Wall Street Journal, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Pete Williams at NBC News, Lawrence Hurley and Andrew Chung at Reuters, Richard Wolf at USA Today, Nina Totenberg at NPR, and Greg Stohr at Bloomberg, who reports that “[t]he argument strongly suggested the justices hadn’t resolved the Wisconsin case, argued during the first week of the court’s term,” in which “the justices considered a Democratic challenge to a Republican-drawn state legislative map.” Coverage of Benisek comes from Steven Shepard at Politico and Steven Mazie for The Economist.

Ruthann Robson unpacks the argument at the Constitutional Law Prof Blog. At his eponymous blog, Lyle Denniston notes that a suggestion by Justice Stephen Breyer that the Maryland and Wisconsin cases be combined with a third gerrymandering case, from North Carolina, for reargument next term “would have the virtue of keeping the Justices out of this year’s election campaign.” At the Election Law Blog, Rick Hasen warns that “if the Court cannot come up with something, and puts the issue off for another day, the last best chance to rein in partisan gerrymandering by the federal courts may be lost for at least a generation.”

Justin Marceau analyzes Tuesday’s argument in Hughes v. United States, which involves how to determine the precedential effect of Supreme Court decisions with no majority opinion, for this blog. At Law360 (subscription required), Jimmy Hoover reports that the justices “acknowledged … that there’s no great way to read its fractured rulings that lack a clear majority opinion, but suggested that one litigant’s proposal to solve the problem would result in ‘chaos’ and throw the justices out of whack.” At the Civil Procedure and Federal Courts Blog, Adam Steinman observes that an remark by Justice Elena Kagan during oral argument highlighted “the same concerns that others have identified with allowing dissenting Justices to determine the binding content of Supreme Court decisions.”

Briefly:

• At Slate, Richard Hasen argues that contrary to a recent suggestion “that Justice [Antonin] Scalia’s legacy is fading, his legacy only seems to be growing,” asserting that “Justice Neil Gorsuch, the newest Supreme Court justice, has not only pledged fealty to Scalia’s methodology; he has also tried to emulate his snarkiness.”
• At Take Care, Leah Litman “look[s] at the current Supreme Court term through the lens of #MeToo,” noting that some of this term’s cases “reveal how legal institutions can contribute to some of the mechanisms that both enable harassment and undermine our ability to address it.”
• In an op-ed for The New York Times, Linda Greenhouse weighs in on the question of whether and when appellate judges may consult the facts outside the record in a case, suggesting that “there should be a line between facts — and attitudes — that judges can apply to the matter at hand, and those they can’t.”
• At Empirical SCOTUS, Adam Feldman examines “the methods of interpreting [statutes and code sections] employed by the justices so far this term” and concludes that “[i]f the separation between the court’s liberal and conservative justices on which methods of interpretation are valid continues unabated, we may well see contentious dueling interpretations in the weeks and months to come.”

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