Tuesday round-up

Today is a rare three-argument day at the Supreme Court. This morning, the justices will hear 80 minutes of argument in one of the term’s marquee cases, Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. Amy Howe had this blog’s preview. Sarah Evans and Kathryn Adamson preview the case for Cornell Law School’s Legal Information Institute, and Subscript Law has a graphic explainer. Ariane de Vogue reports at CNN that “[t]he justices will hear the administration’s claims that the question is necessary to better comply with federal voting rights law, versus arguments by critics who say it represents a veiled attempt to intimidate noncitizens and Hispanic households and will lead to a decrease in response rates.”

At Constitution Daily, Lyle Denniston reports that “[t]he census case is the most significant test of a Trump Administration policy to reach the Court since a divided Court upheld the government policy to sharply reduce the number of foreign nationals entering the United States from Muslim countries.” At The Economist’s Democracy in America blog, Steven Mazie writes that both this case and the entry-ban case “involve Congress granting wide discretion to executive-branch officials who then seem to offer questionable justifications for policy changes.” At The Economist’s Espresso blog, Mazie notes that “[t]he justices’ decision will be felt for a decade: census data dictate how congressional seats, electoral votes and $650bn in federal funds are divvied up among the states.” Niina Heikkinen reports at E&E News that the case “could have significant implications for legal challenges to federal agencies’ rollbacks of environmental rules.” At Take Care, Jennifer Nou maintains that it “could influence elections for the next decade,” and that “to the extent that the Supreme Court is tempted to avoid review or otherwise extend deference, it would do well to remember that elections — and the agencies that administer them — require special constraints.”

At 1 p.m., the justice will reconvene to hear two more arguments. In Mitchell v. Wisconsin, they will consider a Fourth Amendment challenge to a state law allowing law enforcement to draw blood from unconscious drivers without a warrant. This blog’s preview came from Amy Howe, in a post that first appeared at Howe on the Court. Basem Besada and Clotilde Le Roy have Cornell’s preview.

The final argument of the day is in Rehaif v. United States, in which the court will consider whether, to convict defendant in U.S. illegally for violating a federal gun-possession law, prosecutors must show that defendant knew he was in the country illegally. Evan Lee previewed the case for this blog. Cornell’s preview comes from Benjamin Rodd and Julia Hollreiser. Trialdex looks at the potential implications of the case.

Yesterday the court added four hours of oral argument to next term’s docket, granting five cases and consolidating two; the grants include high-profile cases that ask whether federal law protects employees from discrimination on the basis of sexual orientation or gender identity. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. Jess Bravin and Brent Kendall report for The Wall Street Journal that “[l]ower courts have differed sharply on whether the 1964 Civil Rights Act, which prohibits sex discrimination, necessarily covers sexual orientation or gender identity,” and that “[t]he court’s calendar all but ensures decisions will come in the late spring or early summer of 2020, injecting a significant social issue—and likely the makeup of the Supreme Court itself—into the presidential election season.” Additional coverage comes from Lyle Denniston at Constitution Daily, Lisa Keen at Keen News Service, and Mark Walsh at Education Week’s School Law Blog, who reports that “[t]he transgender case may be particularly relevant for the widespread legal debate involving whether transgender students are protected under Title IX of the Education Amendments of 1972, which bars discrimination ‘based on sex’ in federally funded schools.” Commentary comes from Ross Runkel at his eponymous blog and Joshua Lushnat at Ogletree Deakins.

At Bloomberg Law, Kimberly Robinson reports that after yesterday’s oral argument in Food Marketing Institute v. Argus Leader Media, in which the justices considered how to interpret the term “confidential” in a Freedom of Information Act exemption, the court “seems primed to change Freedom of Information Act disclosures in a way that would please business” by reading the exemption broadly, “mak[ing] it harder to use FOIA requests to access business commercial and financial information when it intersects with government programs and is held by federal agencies.” Brent Kendall and Jess Bravin report for The Wall Street Journal that in yesterday’s second case, Fort Bend County v. Davis, which asks whether Title VII’s requirement that plaintiff exhaust administrative remedies is a jurisdictional requirement or a claim-processing rule that can be waived by an employer, “the justices appeared unwilling to tighten the rules for employment-discrimination lawsuits.”

In the latest episode of SCOTUStalk (podcast), Mark Walsh joins Amy Howe to discuss last week’s oral argument in Iancu v. Brunetti, in which the justices considered a First Amendment challenge to the ban on registration of “immoral” or “scandalous” trademarks by a designer who wanted to register the trademark for his FUCT clothing brand. At SCOTUS OA, Tonja Jacobi and Matthew Sag write that the court “seemed considerably less inclined to allow the [Patent and Trademark Office] to prohibit swear words than to prohibit racial slurs.”

Briefly:

• At Greenwire (subscription required), Ellen Gilmer reports that one of yesterday’s grants, CITGO Asphalt Refining Co. v. Frascati Shipping Co., Ltd., which asks whether, under federal maritime law, a safe-berth clause in a voyage-charter contract is a guarantee of a ship’s safety or imposes a duty of due diligence, “could affect liability for future oil spills and other maritime accidents.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]
• At Empirical SCOTUS, Adam Feldman examines “the role of lawyers in Supreme Court decision making.”
• At The World and Everything in It, Mary Reichard breaks down the oral arguments in Brunetti and Emulex Corp. v. Varjabedian, which asks whether securities investors can sue a company for failing to provide adequate information for the investors to use in evaluating the price of a tender offer.

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