Scribble

Editor's Note :

Scribble

Government returns to Supreme Court on military transgender ban – Amy Howe

Symposium: Crosses and constitutional clarity – Lindsay See

Symposium: Cross purposes -- Why a Christian symbol can’t memorialize all war dead – Richard B. Katskee

Live blog of confirmation hearing | March 21, 2017

Live blog of confirmation hearing | March 21, 2017

Dec. 2018

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Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

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Conference of December 7, 2018

Orders

DAWSON V. STEAGER (17-419)

LORENZO V. SEC (17-1077)

BIESTEK V. BERRYHILL (17-1184)

HELSINN HEALTHCARE V. TEVA PHARMACEUTICALS (17-1229)

Supreme Court building closed for National Day of Mourning for George H.W. Bush

GAMBLE V. UNITED STATES (17-646)

Conference

Orders

Opinions

Holiday

3rd & 7 37yd

Gorsuch: Respectfully, it is not.

by Amy Howe 3/21/2017 7:12:43 PM

Comment ()
Gorsuch talking about United States v. Jones, about GPS tracking device on car. This is at least his second reference to Jones and originalism today.

by Amy Howe 3/21/2017 7:13:17 PM

Comment ()
Klobuchar: So when the Constitution refers to "his" or "he" in terms of president, the founders thought a woman could be president?

by Amy Howe 3/21/2017 7:13:49 PM

Comment ()
Gorsuch: Of course. [Raises his voice]. I have two daughters.

by Amy Howe 3/21/2017 7:14:04 PM

Comment ()
Klobuchar is citing other examples of things left out of the Constituion, like the Air Force.

by Amy Howe 3/21/2017 7:14:22 PM

Comment ()
Klobuchar refers to US v. VA, re exclusion of women from VMI. Scalia stuck to originalism in dissent, saying decision is creation of Constitution.

by Amy Howe 3/21/2017 7:14:57 PM

Comment ()
Klobuchar: Would you be willing to apply same approach to minorities, LGBT, etc.?

by Amy Howe 3/21/2017 7:15:40 PM

Comment ()
Gorsuch: A good judge applies a law without respect to persons.

by Amy Howe 3/21/2017 7:15:49 PM

Comment ()
Klobuchar: [Summary: What does that mean?]

by Amy Howe 3/21/2017 7:16:01 PM

Comment ()
Gorsuch: I don't take account of the person before me. Everyone is equal in the eyes of the law.

by Amy Howe 3/21/2017 7:16:15 PM

Comment ()
Gorsuch, responding to Klobuchar's discussion of "selective originalism" -- refers her to various Supreme Court decision that relied on originalism to reach pro-defendant result.

by Amy Howe 3/21/2017 7:17:06 PM

Comment ()
Klobuchar promises to do it on the second round.

by Amy Howe 3/21/2017 7:17:18 PM

Comment ()
Klobuchar brings up "courtesy fifth": is it a good thing?

by Amy Howe 3/21/2017 7:17:31 PM

Comment ()
Gorsuch: I haven't studied that. Would be presumptuous to offer an opinion.

by Amy Howe 3/21/2017 7:17:46 PM

Comment ()
Klobuchar: Could be relevant to travel ban, so maybe we will ask in next round.

by Amy Howe 3/21/2017 7:18:01 PM

Comment ()
Klobuchar has now moved on to freedom of the press.

by Amy Howe 3/21/2017 7:18:40 PM

Comment ()
Under NYT v. Sullivan, would First Amendment permit government officials to sue the press under any lower standard?

by Amy Howe 3/21/2017 7:19:11 PM

Comment ()
Gorsuch: NYT v. Sullivan was a landmark decision. Proof of actual malice is required to state a claim. Can point you to cases that have applied this principle.

by Amy Howe 3/21/2017 7:19:58 PM

Comment ()
Last question from Klobuchar: are there instances in which a court should recognize a reporter's privilege?

by Amy Howe 3/21/2017 7:20:53 PM

Comment ()
Gorsuch: those questions come up, so I must be careful. Your description of the case is entirely accurate.

by Amy Howe 3/21/2017 7:21:16 PM

Comment ()
Gorsuch is returning to the room.

by Amy Howe 3/21/2017 7:33:11 PM

Comment ()
Senator Grassley is gaveling the hearing to reopen it.

by Amy Howe 3/21/2017 7:34:38 PM

Comment ()
Senator Cruz is up now. Congratulates Gorsuch on making it through the first half of questioning with flying colors.

by Amy Howe 3/21/2017 7:35:04 PM

Comment ()
Cruz: What is the answer to the ultimate question of life, the universe, and everything?

by Amy Howe 3/21/2017 7:35:29 PM

Comment ()
Gorsuch: 42.

by Amy Howe 3/21/2017 7:35:34 PM

Comment ()
This is an anecdote about swearing in new lawyers at the Tenth Circuit. Gorsuch apparently asks them that question, and the answer is from Douglas Adams' Hitchhiker's Guide to the Galaxy, which he says is one of his daughter's favorite books.

by Amy Howe 3/21/2017 7:36:55 PM

Comment ()
Cruz: You started as a law clerk for Byron White.

by Amy Howe 3/21/2017 7:37:08 PM

Comment ()
Talking about White's record in NFL. Cruz -- can you talk about your experience?

by Amy Howe 3/21/2017 7:37:39 PM

Comment ()
Gorsuch: He really was my childhood hero. To get picked out of the pile to clerk for him was the privilege of a lifetime.

by Amy Howe 3/21/2017 7:38:10 PM

Comment ()
Sen. Ted Cruz (R-Texas) asks first about Justice Byron White.

by Andrew Hamm edited by Molly Runkle 3/21/2017 7:39:00 PM

Comment ()
We have another Gorsuch Byron White impression. [Don't know him, so can't weigh in on how accurate it is.]

by Amy Howe 3/21/2017 7:39:06 PM

Comment ()
[Or should say didn't know him, very sorry.]

by Amy Howe 3/21/2017 7:39:18 PM

Comment ()
[But Gorsuch very much enjoyed the impression.]

by Amy Howe 3/21/2017 7:39:38 PM

Comment ()
White said his judicial philosophy was to decide cases. [Pretty sure we have heard this anecdote already today too.]

by Amy Howe 3/21/2017 7:40:03 PM

Comment ()
Before a short break, Grassley entered into the record an op-ed with the Chicago Tribune, "Crying wolf over Neil Gorsuch." Here it is. www.chicagotribune.com

by Andrew Hamm 3/21/2017 7:40:29 PM

Comment ()
Now Cruz, who also clerked at the Court, is talking about the basketball court at the court. Describes White as playing with a bunch of "pencil-necked law clerks." [Cruz's words, not mine.]

by Amy Howe 3/21/2017 7:41:22 PM

Comment ()
Now we are talking about Byron White's jump shot and eye-hand coordination. [I do not make this up.]

by Amy Howe 3/21/2017 7:41:44 PM

Comment ()
White told him, "The truth is, we will all be forgotten."

by Amy Howe 3/21/2017 7:42:43 PM

Comment ()
Cruz: "There is wisdom in that humility."

by Amy Howe 3/21/2017 7:42:52 PM

Comment ()
Cruz: Some Democratic senators who have challenged originalism, painted it as some quaint and outdated mode of interpreting the Constitution.

by Amy Howe 3/21/2017 7:43:17 PM

Comment ()
Cruz (who is speaking very slowly): Do you agree that originalism is a quaint and outdated notion?

by Amy Howe 3/21/2017 7:44:09 PM

Comment ()
Gorsuch: We sometimes use labels as a way to not engage with other people. As a judge, that's not fair or useful.

by Amy Howe 3/21/2017 7:44:33 PM

Comment ()
Gorsuch: I don't think there is a judge alive who doesn't want to know something about original meaning of text he or she is interpreting. I don't think this is an ideological thing. Refers to Fourth Amendment cases that ruled for the defendant. Also Crawford v. Washington and the right to confront witnesses.

by Amy Howe 3/21/2017 7:45:40 PM

Comment ()
Gorsuch: Crawford based on original meaning of Sixth Amendment. Justice Stevens examined original history of Fifth Amendment in Apprendi.

by Amy Howe 3/21/2017 7:46:09 PM

Comment ()
Gorsuch: Or Heller, in which both majority and dissent wrote opinions that examined original history of the Constitution.

by Amy Howe 3/21/2017 7:46:55 PM

Comment ()

Featured Posts

Government returns to Supreme Court on military transgender ban – Amy Howe

Symposium: Crosses and constitutional clarity – Lindsay See

Symposium: Cross purposes -- Why a Christian symbol can’t memorialize all war dead – Richard B. Katskee
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This Week at the Court
The Supreme Court released orders from the December 7 conference on Monday; the justices added Kisor v. Wilkie to their merits docket for this term. The justices also released their decision in United States v. Stitt on Monday.
The justices will meet next for their January 4 conference. The calendar for the January sitting, which will begin on January 7, is available on the Supreme Court's website.
Recent Decisions
- United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.
- Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.
- Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.
see all this term’s cases »
Current Relists
- City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.
- Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.
- Kennedy v. Bremerton School District Whether public school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
More Petitions »
Major Cases
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- In re Department of Commerce
  Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
- Timbs v. Indiana
  Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
- Apple Inc. v. Pepper
  Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
see all this term’s cases »
Recent Special Features
Statistical Snapshot

Cases argued 32

Cases decided 3

Summary reversals 0

Merits cases granted to date 57

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Justice Sotomayor at Harvard

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
Sigma Delta Chi
Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
National Press Club Award
Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
Silver Gavel Award
Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
American Gavel Award
Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
Webby Award
Awarded the Webby Award for excellence on the internet.

3
Orders
DAWSON V. STEAGER (17-419)
LORENZO V. SEC (17-1077)

4
BIESTEK V. BERRYHILL (17-1184)
HELSINN HEALTHCARE V. TEVA PHARMACEUTICALS (17-1229)

5
Supreme Court building closed for National Day of Mourning for George H.W. Bush

6
GAMBLE V. UNITED STATES (17-646)

7
Conference

10
Orders
Opinions

Cases argued	32
Cases decided	3
Summary reversals	0
Merits cases granted to date	57