Thursday round-up

EDITH ROBERTS APR 23, 2020 7:09 AM

At the Washington Legal Foundation’s Legal Pulse blog, Lawrence Ebner wonders, “given the unusual alignment of Justices” in Ramos v. Louisiana, in which a fractured court ruled on Monday that the Constitution requires a unanimous jury verdict in state criminal trials, “whether the Court’s application of stare decisis is truly principled, or whether it is just a case-by-case, result-driven expedient for saving or ditching a controversial, and even wrongly decided, precedent.” At the Clause 40 Foundation’s Ad Justitiam blog, Jonathan Blanks unpacks Monday’s opinions in Ramos, concluding that “[t]he tone and substance of the Ramos opinions show how race continues to inflect arguments about American law, and how far we still have to go to be a more perfect Union.” In an op-ed for The New York Times, Linda Greenhouse explains that “[b]elow the surface of [the] 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future: Peek under the hood and see a Supreme Court in crisis.”

At The National Law Journal, Marcia Coyle reports that “[a] rare confession of error by the U.S. Office of Solicitor General to the U.S. Supreme Court may give a pro se prisoner in an immigration case another chance to convince a federal appeals court not to approve his removal from the country,” and that “[a]lthough confessions of error at the Supreme Court are uncommon, Brown’s case was remarkable for another reason: Many records in his case are sealed or not otherwise easily accessible.” At the ImmigrationProf Blog, Nancy Morawetz writes that “the confession of error obscures how Department of Justice (DOJ) is likely to continue to try to prevent Mr. Brown from ever having his case heard in a federal court”; she suggests that the Supreme Court “could be more cautious with confessions of error from the SG.”

In an analysis for The Washington Post (subscription required) of their recent research, Guy-Uriel Charles and Luis Fuentes-Rohwer write that “the real culprit” in Wisconsin’s recent election that required people to show up at the polls during a public health emergency “is the Supreme Court’s 2018 political gerrymandering decision in Rucho v. Common Cause: In that case, the court could have — yet failed to — curb the type of extreme partisanship that led to what happened in Wisconsin.” At The Appeal, Jay Willis criticizes the Supreme Court’s “display of feigned judicial helplessness” in the opinion that led directly to the election, Republican National Committee v. Democratic National Committee, which blocked a lower court order extending the deadline for mailing absentee ballots because of the coronavirus pandemic.

Briefly:

• At AP, Mark Sherman and Jessica Gresko report that the Supreme Court’s recent “decision to hold 10 arguments in cases via telephone during six days in May and let the public listen in was unimaginable even two months ago.”
• At The National Law Journal, Tony Mauro talks to “Oklahoma Solicitor General Mithun Mansinghani[, who] was planning to bring his parents to Washington on April 21 to see him argue before the U.S. Supreme Court” in McGirt v. Oklahoma, before the case was rescheduled for a telephonic argument next month.
• At Bloomberg Law, Robert Iafolla reports that the Supreme Court “recently handed down a pair of rulings that cemented its view on the default standard for proving workplace bias, but legal scholars say some confusion remains about what that test requires and how difficult it is for workers to meet.”
• For Capitol Media Services (via Tucson.com), Howard Fischer reports that the “Supreme Court has cleared the way for a Mexican national to get a new trial — this time without the bad legal advice he was given the first time that resulted in his deportation” – by declining to review the Arizona Supreme Court’s ruling setting aside his guilty plea.
• At Forbes, Nick Sibilla urges the court to review a cert petition challenging a “legal loophole” that allows “government agents [to] dodge lawsuits for violating constitutional rights, so long as those rights weren’t ‘clearly established’ at the time.”
• At the Institute for Justice’s CJE Bulletin, Adam Shelton echoes Justice Neil Gorsuch’s dissent in Thryv v. Click-to-Call Technologies, LP, in which the court held that federal patent law does not allow an appeal of the Patent Trial and Appeal Board’s decision to institute a procedure for challenging the validity of a patent after a finding that a one-year time bar does not apply, arguing that “[t]he Court’s expansive reading of the prohibition of judicial review is just another decision in which it hands its own power over to the executive branch.”
• At The Atlantic (via How Appealing), Garrett Epps hopes the court will summarily reverse a “rogue court [that] has had four chances to apply a foundational First Amendment precedent, and has bobbled it each time[:] That mistake, in a case called Mckesson v. Doe, poses a threat to both freedom of speech and freedom of assembly.”

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