Yesterday the court issued additional orders from its conference of January 19, granting no additional cases and denying review in a case involving a high-profile challenge to a Texas voter ID law. The court also denied review in a challenge to Alabama’s advisory-jury death sentencing law. Amy Howe reports on the orders for this blog. Additional coverage of the order in the Texas case comes from Robert Barnes in The Washington Post, who notes that “Chief Justice John G. Roberts Jr. said in a statement attached to the order that there was still more work for lower courts to do in assessing the law, and that Texas could return to the high court once that review is final”; Adam Liptak in The New York Times; and Lyle Denniston at Constitution Daily, who observes that the court’s move “cleared the way for the new Trump Administration to switch the government’s position – if it wishes to do so – to allow states to enforce strict photo ID requirements for America’s voters.” Commentary comes from Rick Hasen at the Election Law Blog. In USA Today, Richard Wolf reports on the death penalty case, observing that many “opponents of the Alabama system had expected the justices to take up a challenge.”
The petition of the day is:
Issue: Whether the prohibition on private enforcement of the federal Food, Drug, and Cosmetic Act precludes state-law tort claims predicated on allegations that a generic drug manufacturer violated the FDCA by failing to implement Food-and-Drug-Administration-approved labeling changes in a manner considered timely under state law.
Over the weekend, reports indicated that President Donald Trump’s shortlist for a nominee to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia nearly a year ago has apparently gotten even shorter, with Jan Crawford of CBS News reporting that the list had been narrowed to Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit and Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit. In some ways, the 51-year-old Hardiman has more in common with Justice Sonia Sotomayor – whom he would sit next to if nominated and confirmed to the court – than with Justice Antonin Scalia, whom he would replace: The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)
The Supreme Court issued orders from its January 19 conference this morning. After granting review in two cases from that conference last week, the justices did not add any new cases to their merits docket today. But there was one notable denial on today’s order list: Abbott v. Veasey, the challenge to a Texas law that requires voters to present specific forms of government-issued photo IDs to cast a ballot. The plaintiffs, including the federal government, argued that the law violates Section 2 of the Voting Rights Act, which bars voting practices or procedures that discriminate based on race. The lower courts agreed, and the state asked the Supreme Court to take up the case, but (after considering the case at three consecutive conferences) the justices declined to do so.
Coverage continues of last week’s oral argument in Lee v. Tam, a First Amendment challenge to a government refusal to trademark a rock band’s disparaging name. In The Economist, Steven Mazie reports that by “the end of the hearing, it seemed clear that while a majority of the court is hesitant to go as far” as the lawyer for the band as “in forcing the patent office to accept nearly every application that comes its way, the justices are deeply sceptical about the rule that led it to rebuff The Slants.” At The Huffington Post, Cristian Farias also covers the argument, observing that with “or without the trademark, it would not be a stretch to say that the indie band has garnered more press for what it stands for than many others in its field.” Commentary comes from Ken Jost at Jost on Justice, who observes that the “government fared badly in the arguments, but the trademark board deserves better than it got for its well-meaning effort to dissociate the government from a term that still today is offensive to a significant number of Asians and Asian Americans.”
On Monday the court issued additional orders from the January 19 conference. It did not grant certiorari in any new cases. The justices will meet next for their February 17 conference. The calendar for the February sitting, which will begin on Tuesday, February 21, is available on the court’s website.
The petition of the day is:
Issue: What constitutes a “return” for purposes of bankruptcy.
Thomas Lee has a storied pedigree in both his home state of Utah and the legal field. His father, Rex Lee, served as the U.S. solicitor general and the president of Brigham Young University. Lee’s brother, Mike, serves as a U.S. senator from Utah and is also on President Donald Trump’s list of potential Supreme Court nominees. If nominated and confirmed, Lee would be the court’s first Mormon justice.
Thomas Lee graduated from Brigham Young University and the University of Chicago Law School and went on to two clerkships: the first for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the 4th Circuit, and the second for Supreme Court Justice Clarence Thomas. After his Supreme Court clerkship, Lee worked in private practice before becoming a full-time professor at BYU’s law school. From 2004 until 2005, Lee served as a deputy assistant attorney general in the civil division of the U.S. Department of Justice, where he headed the department’s Federal Programs Branch, which defends federal agencies, federal statutes, and the president in high-profile cases. In 2010, Utah governor Gary Herbert appointed Lee to the state’s supreme court, where the 52-year-old now serves as the associate chief justice.
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.
The court heard argument this week in:
After its conference yesterday, which was held a day early because of the presidential inauguration, the justices granted cert in two cases. Amy Howe covers the grants for this blog. In The National Law Journal (subscription or registration required), Tony Mauro reports on one of the grants, Bristol-Myers Squibb Co. v. Superior Court of California, a “key business dispute over a California court ruling that made it easier for nonresidents to join in mass class action lawsuits,” noting that the case “is one of several jurisdiction-related petitions filed with the court in recent months.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Bristol-Myers.] In The Washington Post, Robert Barnes reports that yesterday’s other grant, in District of Columbia v. Wesby, a case stemming from an arrest for trespassing that raises questions about the Fourth Amendment and qualified immunity, “appears to have split the Supreme Court justices,” who “considered nine times whether to accept the case before agreeing to review it.” Mark Sherman also covers the grant in Wesby for the Associated Press.