Monday round-up

Amy Howe reports for this blog that on Friday the court denied a request that it revive a lower court ruling allowing any Texas voter to vote by absentee ballot without an excuse for the 2020 election cycle; her post originally appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[t]he Texas Democratic Party and several voters had urged the court to reinstate a federal trial judge’s injunction requiring state officials to allow all voters, and not just those who are 65 or older, to submit their ballots by mail[; t]hey relied on the 26th Amendment, which lowered the voting age to 18 and said the right to vote ‘shall not be denied or abridged by the United States or by any state on account of age.’” At Fox News, Bill Mears reports that “[t]he fight in Texas is one of several nationwide over expanding access to mail-in ballots amid the pandemic.”

Kari Hong analyzes Thursday’s decision in Department of Homeland Security v. Thuraissigiam, in which the court held that limitations on judicial review of an expedited decision to deport an asylum-seeker do not violate the Constitution, for this blog. At Dorf on Law, Michael Dorf argues that the decision reflects “a flaw in our familiar way of talking about habeas as a means of challenging unlawful detention[:] Habeas has long been and should be broader than that[; i]t is a means of challenging substantial restraints on liberty, which include detention but also other kinds of government action.” At Jost on Justice, Kenneth Jost writes that, in her dissent, Justice Sonia “Sotomayor is persuasive in depicting the new decision as inconsistent with precedent and the historic purpose of habeas corpus as a safeguard of individual liberty.” Additional commentary comes from Leah Litman at The Atlantic (via How Appealing).

For USA Today, Richard Wolf reports on the state of LGBTQ rights five years after the Supreme Court’s decision recognizing the right of same-sex couples to marry, including the Supreme Court’s recent decision in Bostock v. Clayton County holding that federal employment discrimination law protects gay and transgender employees. Randy Maniloff interviews Mary Bonauto, who argued the same-sex marriage decision, at the ABA Journal. At National Review, Josh Blackman and Randy Barnett explain how “halfway textualism led Justice Gorsuch astray” in Bostock. At The New Yorker (via How Appealing), Jeannie Suk Gerson suggests that “[w]ith the Court expected to hear affirmative-action cases within two years—including ongoing lawsuits against Harvard and the University of North Carolina at Chapel Hill—there is reason to think that Bostock’s formalist articulations on discrimination will bolster a conservative decision to dismantle race-conscious admissions policies.” Additional commentary comes from John Bursch at Inside Sources. [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:

• At CNN, Ariane de Vogue reports that “[a]lthough [Justice Samuel] Alito penned a victory for the government in an immigration case last week, and he may deliver wins for the right in other areas such as religious liberty before the term is over, his unhappiness with the court’s direction has been palpable.”
• Richard Wolf reports for USA Today that “[t]he Trump administration’s latest request that the Supreme Court strike down the Affordable Care Act comes at a perilous time for the president, amid a pandemic and just four months before Election Day.”
• In an op-ed for Bloomberg Law, Daniel Walfish suggests that although the recent decision in Liu v. Securities and Exchange Commission, in which the court held that the SEC can seek disgorgement of profits as a remedy in court for violating the securities fraud laws if the amount does not exceed the wrongdoer’s net profit and is awarded for the victims, “did not work the sea change many had expected when the court announced it would hear the case, the ruling will give some individuals and companies in the SEC’s cross-hairs greater leverage in settlement negotiations with the agency, and potentially produce lower total monetary awards.”

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