Thursday round-up

EDITH ROBERTS MAR 22, 2018 7:17 AM

The Supreme Court issued two opinions yesterday. In Ayestas v. Davis, the justices held unanimously that the lower court had applied too demanding a standard in determining when the funding of services for a criminal defendant in a capital case is necessary. Steve Vladeck analyzes the opinion for this blog, and Subscript has a graphic explainer. For The Washington Post, Robert Barnes reports that “[t]he case returns to lower courts so that they can judge Ayestas’s request under the proper standard.”

In Marinello v. United States, the court held 7-2 that to convict a defendant of impeding the administration of the tax code, the government must prove that the defendant knew of or could have foreseen a tax-related proceeding. Subscript’s graphic explainer is here. At NPR, Nina Totenberg reports that the ruling “has made it harder for the federal government to prosecute people for obstructing IRS enforcement of the tax code.” NFIB suggests that a contrary ruling “would have opened the doors for prosecutions against businesses for engaging in completely legitimate practices simply because the government alleges that business might have had some improper motive.” Coverage of both Ayestas and Marinello comes from Chris Geidner at BuzzFeed News, who reports that “[t]he rulings came a day after the court ruled, at least temporarily, on the side of another criminal defendant — halting Missouri, on a 5–4 vote, from proceeding with the execution of Russell Bucklew.”

Yesterday the justices also heard oral argument in Upper Skagit Indian Tribe v. Lundgren, in which they considered tribal immunity from state-court actions to adjudicate title to land. Ronald Mann has this blog‘s argument analysis. Andrew Westney discusses the case at Law360 (subscription required). Mark Walsh has a “view” from the courtroom for this blog. At NPR, Nina Totenberg reports that, although most of Washington was shut down yesterday for what proved to be an underwhelming snow storm, “[a]t the Supreme Court, snow is simply not considered an excuse for failure to function.”

On Tuesday, the justices held in Cyan v. Beaver County Employees Retirement Fund that the Securities Litigation Uniform Standards Act of 1998 did not strip state courts of jurisdiction to adjudicate class actions alleging only 1933 Securities Act violations or authorize removing such suits from state to federal court. Ronald Mann analyzes the opinion for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]

Commentary continues on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that requires licensed centers to post notices to inform patients about the availability of state-funded family-planning services, including contraception and abortion, and requires unlicensed centers to disclose that they do not provide medical services. In an op-ed for The Wall Street Journal, James Gottry argues that “[i]n keeping with past decisions, the justices should refuse to allow California to force pro-life centers to be mouthpieces for the state.” He expresses a similar view in an op-ed for The Hill. Additional commentary on NIFLA comes in op-eds from Thomas Glessner at National Review, Michael Farris at Fox News and Kentucky Today, Maggie Amos for USA Today, and Kristen Waggoner for The Washington Times. At Slate, Mark Joseph Stern maintains that “[a]t the end of the day, what matters most about NIFLA is that the court rules consistently.”

In The National Law Journal (subscription or registration required), Tony Mauro reports that “[i]n an early-morning tweet [yesterday], [President Donald] Trump took the Justice Department to task for failing to urge the U.S. Supreme Court to take up a case brought by Arizona defending its ban on the issuance of drivers’ licenses to immigrants in the Deferred Action for Childhood Arrivals or DACA program.” Another look at the tweet, and at the government’s take on the case, comes from Ian Millhiser at ThinkProgress, who argues that “had the Supreme Court upheld Arizona’s anti-immigrant policy, immigration hardliners would have won a temporary victory,” but that “[i]n the process, … they risked creating a legal precedent that undermined a high profile Trump administration suit against a leading blue state.”

At The Hollywood Reporter, Patrick Shanley reports that “Supreme Court Justice Ruth Bader Ginsburg welcomed Stephen Colbert to Washington to lead the Late Show host in a serious workout session, which … appear[ed] as a segment on Wednesday night’s episode.” Additional coverage of Colbert’s effort to “’get shredded’” with Ginsburg comes from Derek Thomas at Entertainment Weekly; video is available on YouTube.

Briefly:

• At Empirical SCOTUS, Adam Feldman tracks the trickle of opinions for the current term, noting that “although the justices have picked up the pace in certain areas, other signs point to the possibility that the court’s output this term will continue at the same rate.”
• At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Meggan DeWitt urge the court to review a challenge to a “mandated disclosure regime[]” in California that “stretch[es] the First Amendment to the breaking point regarding commercial speech.”
• At the Election Law Blog, Edward Foley offers the third in a series of essays discussing Benisek v. Lamone, a partisan-gerrymandering challenge by Republican voters to a congressional district in Maryland; he argues that “an honest and principled commitment to originalism requires recognition that faction-motivated gerrymandering is contrary to the original understanding of how elections to the federal House of Representatives are supposed to work.”
• At The George Washington Law Review’s On the Docket blog, Alan Morrison looks at the court’s decision this term in S. Bank National Association v. Village at Lakeridge, in which the justices held that the court of appeals was right to defer to a bankruptcy court’s determination of non-statutory insider status; he observes that “Justice Kagan’s thoughtful opinion, explaining how and why she got to her conclusion, provides a roadmap for answering similar questions involving the scope of appellate review in a number of other contexts.”
• At Bloomberg Law, Sylvia Carignan reports that a public-health advocacy group has asked the Supreme Court “to decide whether the U.S. government’s past waste disposal practices make the military liable for causing human health problems.”
• At Linkedin, legal-writing maven Ross Guberman offers five ways to write like Justice Elena Kagan.
• In a different take on a justice’s writing style, Amanda Whiting at Washingtonian remarks on the (very) niche Twitter “game of imitating Supreme Court Justice Neil Gorsuch, who is known for almost comically over-explaining himself in his opinions.”

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