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Scribble

Court puts partisan-gerrymandering rulings on hold – Amy Howe

Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent – Anita Krishnakumar

Relist Watch – John Elwood

Live blog of confirmation hearing | March 21, 2017

Live blog of confirmation hearing | March 21, 2017

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Conference of May 23, 2019

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

Court puts partisan-gerrymandering rulings on hold – Amy Howe

Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent – Anita Krishnakumar

Relist Watch – John Elwood
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This Week at the Court
The Supreme Court will release orders from the May 23 conference on Tuesday at 9:30 a.m.; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Tuesday at 10 a.m.
On Thursday, the justices meet for their May 30 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, 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 -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- 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.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- 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.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
Recent Special Features
Statistical Snapshot

Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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.

Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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