Wednesday round-up

Ariane de Vogue reports at CNN that Monday’s decision in Bucklew v. Precythe, in which the court voted 5-4 to reject a death-row inmate’s argument that, because he suffers from a rare medical condition, executing him by lethal injection would be so painful that it would violate the constitution’s ban on cruel and unusual punishment, reveal that “[t]he justices are still bitterly divided over the execution of Domineque Ray, who claimed his religious rights were violated because he could not have an imam with him in the execution chamber, in February.” Stephen Vladeck writes at Politico Magazine that “if Bucklew is a harbinger of how the new court is going to resolve such ideologically charged cases going forward, it’s going to get a lot more divisive from here.” At The Economist’s Democracy in America blog, Steven Mazie finds “the hard-hearted tone of the majority opinion” in Bucklew “shocking.” At Ikuta Matata, Sean Smith wonders whether “Bucklew signal[s] a newly invigorated role for originalism in Eighth Amendment interpretation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.]

At Slate, Daniel Harawa urges the court to review the case of Charles Rhines, a gay death-row inmate who claims that a biased jury deprived him of a fair trial, “because, like racial bias, anti-gay bias should not have a place in the jury box.” Additional commentary on Rhines’ cert petition comes from Adam Romero and Ilan Meyer at Jurist.

Briefly:

• David Super has this blog’s opinion analysis in Biestek v. Berryhill, in which the court held that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that an applicant can do “other work,” even if the expert does not provide the data she used to form her opinion.
• At The Atlantic, Garrett Epps writes that although “[s]ince the retirement of Justice Anthony Kennedy last summer, [Chief Justice John] Roberts has become the Court’s ‘median justice,’ the member whose vote will usually determine the outcome of a close case,” “Roberts … is not by temperament a ‘swing’ justice[:] His hesitations about moving the Court (and the country) to the right, it appears, are largely a question of pace.”
• At The George Washington Law Review’s On the Docket blog, Theresa Gabaldon discusses the recent decision in Lorenzo v. Securities and Exchange Commission, in which the court held that a defendant can be charged with violating federal law barring fraudulent securities schemes if he distributed, but did not make, false statements.
• At the Competitive Enterprise Institute blog, Devin Watkins suggests that after last week’s oral argument in Kisor v. Wilkie, in which the justices reconsidered precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, “it seems more likely than not that the court will overturn Auer.”
• At the Constitutional Accountability Center blog, David Gans weighs in on Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, arguing that “[i]n adding the citizenship question, Secretary [Wilbur] Ross flouted both the government’s constitutional obligation under the Census Clause to ensure a count of all persons, as well as the laws Congress passed to safeguard the integrity of this constitutionally mandated count.”

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