Tuesday round-up

EDITH ROBERTS JAN 10, 2017 6:32 AM

Today the court will hear oral argument in two cases. The first case on the agenda is Expressions Hair Design v. Schneiderman, a First Amendment challenge to a New York law that allows merchants to give discounts to customers who pay in cash, but prohibits the imposition of surcharges for customers who use credit cards. Ronald Mann previewed the case for this blog. Another preview comes from Liza Carens and Jenna Scoville at Cornell’s Legal Information Institute.

Next up is Goodyear Tire & Rubber Co. v. Haeger, which explores the limits of a court’s inherent power to impose sanctions for bad-faith conduct during discovery. Howard Wasserman had this blog’s preview; Michelle Korkhov and Anna Marienko at Cornell also preview the case.

 Yesterday, the court issued a summary opinion in White v. Pauly, vacating a lower court order in a qualified-immunity case stemming from a fatal shooting by a police officer and remanding for further consideration by the district court; the justices held that the lower courts that rejected the police officer’s claim of qualified immunity had applied the relevant law at an overly generalized level. Amy Howe covers the decision for this blog. At Bloomberg View, Noah Feldman weighs in on the case, noting that the “justices made it clear that they wanted to send a message,” but that by “adopting the narrowest possible level of generality in understanding clearly established law, lower courts could confer qualified immunity on police in almost every imaginable case,” and that a “few more lawsuits is a price we should be willing to pay to help protect suspects from unnecessary deadly force.”

In the first of a series of profiles of jurists said to be on Donald Trump’s shortlist of potential nominees for the vacant seat on the court, Amy Howe looks at the record of Michigan Supreme Court Justice Joan Larsen for this blog. Another look at Larsen comes from Damon Root at Reason, who asserts that if “Larsen does get the nod from Trump, the Senate Judiciary Committee should examine her past statements in support of expansive executive power.” At Bloomberg BNA, Patrick Gregory offers five things to know about another Trump shortlister, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit, noting that Gorsuch could fill the late Justice Antonin Scalia’s “shoes as the most colorful writer on the court.”

Briefly:

• At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Frank Garrison argue that the court should grant review in a challenge to New York unionization rules that affect home-based workers, maintaining that “it would actually be a vast expansion of precedent to say that ‘labor peace’ justifies forcibly unionizing at-home workers who are independent from the state government.”
• At First Mondays (podcast), Ian Samuel and Dan Epps look at some of the cases on this week’s argument agenda and discuss Chief Justice John Roberts’ recent recusal in Life Technologies Corp. v. Promega Corp.
• Another look at the recusal comes from Tony Mauro in Supreme Court Brief (subscription required), who notes that in addition to “human error,” other factors may have contributed to Roberts’ delay in realizing that his stock holdings created a conflict; Mauro reports that sometimes “lawyers involved in a case point out an overlooked stock conflict to justices,” but that “relying on lawyers to report conflicts to justices presumes that they check the justices’ financial disclosure forms in the first place.”
• At Education Week, Christina Samuels previews Endrew F. v. Douglas County School District, in which the court will determine what level of educational benefits students with disabilities must receive.
• At Slate’s Amicus podcast, Dahlia Lithwick also discusses Endrew F., as well as surveying the names on Trump’s Supreme Court shortlist with a former Scalia clerk.
• At Reuters, Lawrence Hurley reports that the court yesterday denied a cert petition filed by Dow Chemical challenging a lower court ruling that denied “more than $1 billion in tax deductions based on partnerships the company entered into that lower courts said were created primarily to avoid tax liability and had no legitimate business purpose.”
• At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Thomas Berry discuss a pending cert petition in a campaign-finance case involving mandatory disclosures of information about donors to advocacy organizations, arguing that for “many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation.”
• At Education Week, Mark Walsh reports that the court on Monday “declined to hear the appeal of the former superintendent of the Poughkeepsie, N.Y., school district in a civil case in which he alleged two district officials participated in a malicious prosecution of him over alleged financial improprieties.”

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