Friday round-up

Sheryl Gay Stolberg reports for The New York Times that “[t]he Trump administration asked the Supreme Court late Thursday to overturn the Affordable Care Act — a move that, if successful, would bring a permanent end to the health insurance program popularly known as Obamacare and wipe out coverage for as many as 23 million Americans.” At ABC News, Devin Dwyer reports that “[t]he administration makes the case in a legal brief filed Thursday in” California v. Texas, “the case brought by 20 Republican-led states that want to completely invalidate the law.”

Yesterday the Supreme Court ruled in Department of Homeland Security v. Thuraissigiam that limitations on judicial review of an expedited decision to deport an asylum-seeker do not violate the Constitution. For The Wall Street Journal (subscription required), Jess Bravin reports that the ruling “smoothed the government’s path to deport unauthorized immigrants seeking asylum, ruling that a noncitizen apprehended shortly after crossing the border has no constitutional right to challenge immigration officials’ ‘expedited removal’ orders in federal court.” At The Washington Free Beacon, Kevin Daley reports that “[t]he legal question was whether asylum seekers can seek habeas corpus, the basic right to have your detention reviewed by a judge, when they are fast-tracked for removal.” Nina Totenberg reports at NPR that “[t]he vote was 7-2, but [Justice Samuel] Alito’s opinion was joined only by the court’s four other conservatives — Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh[; t]wo of the court’s liberal justices — Stephen Breyer and Ruth Bader Ginsburg –agreed that Thuraissigiam’s removal order was proper but said that the opinion’s reasoning and language swept too broadly.”

At the ImmigrationProf Blog, Ming Hsu Chen charts the next steps after last week’s decision in Department of Homeland Security v. Regents of the University of California, in which the court held that the government’s decision to terminate the DACA program, which allowed undocumented young people brought to this country as children to apply for protection from deportation, violated the procedural requirements prescribed for administrative agencies. At Balkinization, Benjamin Eidelson explains that not only is “the Court’s decision in Regents .. a tremendous victory for the countless people whose lives have been touched by DACA,” but also,  “taken together, … two aspects of Regents … —the arbitrary-and-capricious holding, and the reinforced prohibition on post hoc rationalizations—represent an important reaffirmation of core principles of rationality and accountability in government decisionmaking.” Additional commentary comes from Irene Scharf at the Human Rights at Home blog.

At the Appellate Advocacy Blog, Michael Gentithes suggests that the textualist approach applied by Justice Neil Gorsuch in Bostock v. Clayton County, Georgia, in which the court held that federal employment discrimination law protects gay and transgender employees, “expands judicial discretion by allowing later interpreters of text to hold the original drafters to the perhaps unintentionally expansive meaning of their chosen terms.” At Law & Liberty (via How Appealing), John McGinnis maintains that “Gorsuch’s decision defends an acontextual literalism that has the potential to sever more generally the connection between the legal interpretation of a text and the people who made and understood it.” In an op-ed for The Wall Street Journal, David Crawford and Michael Hanby assert that Bostock “has inscribed into law the abolition of man and woman.”Richard Cordray writes in an op-ed for USA Today that “[t]he decision will likely have major ripple effects, expanding LGBTQ+ rights in many other areas, including federal consumer protections in the financial marketplace.”  [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris Funeral Homes v. EEOC, which was decided along with Bostock.]

Briefly:

• Kimberly Robinson and Jordan Rubin report at Bloomberg Law that “[t]he U.S. Supreme Court is primed to issue its fewest opinions in a single term since the Civil War, but it could still be difficult for the justices to get everything done on time.”
• At The Economist, Steven Mazie looks at the “defiant jurisprudence” of Justice Clarence Thomas, who is completing his 29th year on the Supreme Court bench this term.
• Mark Walsh reports at the ABA Journal on what we’re missing this year as the Supreme Court issues its final decisions of the term online instead of in the courtroom, where “the author of the majority opinion usually delivers a crisp summary, while several times each term a justice on the losing end of a case feels so strongly that he or she delivers a passionate dissent from the bench.”
• At the ImmigrationProf Blog, Kevin Johnson highlights the immigration cases the court decided this term, as well as those on the docket for October Term 2020.
• At The New Republic, Matt Ford argues that the success of the court’s recent experiment with live audio of its oral arguments “should prompt [the justices] to reconsider other unnecessary habits that set them apart from the Americans they serve,” like “the court’s total absence from social media.”

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