January 2022 Archive

The morning read for Monday, Jan. 31

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Justice Stephen Breyer to Retire

At Thursday’s White House announcement, echoes of a ceremony 28 years prior

The justice, in his 80s, had served on the Supreme Court for well over two decades, becoming a liberal stalwart on such issues as abortion rights, affirmative action, and opposition to the death penalty.

Court green-lights Alabama execution in 5-4 ruling that reverses two lower courts

A divided Supreme Court on Thursday evening allowed Alabama to execute a man who argued that the state had failed to give him proper accommodations under the Americans with Disabilities Act so that he could select his method of execution.

The retirement of Stephen Breyer

Tom Goldstein joins Amy Howe to discuss Breyer’s retirement, the most likely candidates to succeed him, and the upcoming White House vetting process. SCOTUStalk is launching a new Q&A feature.

The morning read for Friday, Jan. 28

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

New York’s vaccine regime and sexual harassment questions

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether New York’s pre-pandemic removal of a religious exemption from its law requiring vaccines for school children violates the First Amendment, when a school is liable for student-on-student sexual harassment, and when a student facing disciplinary action possesses liberty or property interests.

The many Stephen Breyers

This article is part of a series of tributes on the career of Justice Stephen Breyer. Deanne E. Maynard is co-chair of Morrison & Foerster’s appellate and Supreme Court practice and a former assistant to the solicitor general. She clerked for Breyer during the 1994-95 term.

Always an optimist, always a teacher

This article is part of a series of tributes on the career of Justice Stephen Breyer. Aileen McGrath is senior counsel in the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld. She clerked for Breyer during the 2008-09 term.

Court sets quiet March argument calendar

The Supreme Court ended a week of momentous news on a much more low-key note, releasing on Friday afternoon the argument calendar for the justices’ March arguments. The court will hear eight hours of oral arguments over six days, on topics ranging from arbitration to international child-custody law.

Justices decline to halt two executions in Oklahoma amid questions about state’s lethal-injection method

On Wednesday afternoon, in the shadow of reports of Justice Stephen Breyer’s forthcoming retirement announcement, the Supreme Court denied an application to postpone the executions of two Oklahoma men.

The morning read for Thursday, Jan. 27

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Justice Breyer, the optimistic pragmatist

This article is part of a series of tributes on the career of Justice Stephen Breyer. Brianne Gorod is chief counsel at the Constitutional Accountability Center. She clerked for Breyer during the 2008-09 term.

The diversity of Justice Breyer’s legacy

This article is part of a series of tributes on the career of Justice Stephen Breyer. Judge Vince Chhabria is a federal district judge in the Northern District of California. He clerked for Breyer during the 2001-02 term. I clerked for Justice Breyer 20 years ago, in the term following Bush v. Gore.

Life lessons from Justice Breyer

This article is part of a series of tributes on the career of Justice Stephen Breyer. Pratik Shah is head of the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld and a former assistant to the solicitor general. He clerked for Breyer during the 2003-04 term.

Biden reiterates promise to nominate a Black woman, lauds Breyer as “model public servant”

Justice Stephen Breyer on Thursday confirmed news reports indicating that he intends to retire from the Supreme Court. In a brief letter to President Joe Biden, the 83-year-old Breyer wrote that he plans to step down from the court at the end of the current term, assuming that a successor has been confirmed by that time.

The morning read for Wednesday, Jan. 26

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Stephen Breyer, pragmatic liberal, will retire at end of term

Justice Stephen Breyer, a devoted pragmatist and the senior member of the Supreme Court’s liberal wing, will retire from the court at the end of the 2021-22 term, NBC News reported on Wednesday.

Profile of a potential nominee: Leondra Kruger

During a 2020 Democratic presidential primary debate, then-candidate Joe Biden pledged that, if elected, he would nominate a Black woman to serve on the U.S. Supreme Court.

How Biden will choose the next Supreme Court nominee

With today’s reporting that Justice Stephen Breyer intends to retire, we now kick off our analysis of potential nominees to replace him. President Joe Biden previously promised to nominate a Black woman, and we assume he will keep that commitment.

Supreme Court to Hear Affirmative Action Challenge

Justices affirm Crawford‘s application of Sixth Amendment confrontation clause to testimonial evidence

Thursday’s decision in Hemphill v. New York affirmed the requirement for cross-examination of testimonial statements offered at trial and stiff-armed a state-law exception to the rule.

The morning read for Tuesday, Jan. 25

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

The rise of certiorari before judgment

For obvious reasons, the Supreme Court’s decision on Monday to grant certiorari in a pair of cases challenging race-based affirmative action in higher education drew major headlines.

The morning read for Monday, Jan. 24

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Court will hear challenges to affirmative action at Harvard and University of North Carolina

The Supreme Court on Monday agreed to reconsider the role of race in college admissions. In a brief order, the justices agreed to take up two cases asking them to overrule their landmark 2003 decision in Grutter v. Bollinger, holding that the University of Michigan could consider race as part of its efforts to assemble a diverse student body.

Justices take up cases on power of district courts and regulation of wetlands

The Supreme Court on Monday morning issued orders from the justices’ private conference on Friday, Jan. 21. In addition to taking up the issue of race in college admissions (covered here), the justices added two other cases to their docket for next term.

Squabbles over masks and shadow-docket tasks

Amy Howe and Katie Barlow review a busy Supreme Court week, including a new cert grant in a religious-freedom case, the latest action on the shadow docket, and “maskgate.” SCOTUStalk is launching a new Q&A feature.

Court reaffirms duties of retirement-plan sponsors to monitor and update plan options

Monday’s decision in Hughes v. Northwestern University will be a strong contender for shortest decision of the term – Justice Sonia Sotomayor’s opinion for a unanimous court did not fill six pages, and included only six paragraphs of explanation following her summary of the dispute.

Announcement of orders and opinions for Monday, Jan. 24 (complete)

We live blogged as the court released the Jan. 24 order list and the opinion in Hughes v. Northwestern University. Click here for a list of FAQs about opinion announcements.

The morning read for Friday, Jan. 21

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected]. Here’s the Friday morning read: Is Ginni Thomas a Threat to the Supreme Court?

Justices will review scope of McGirt decision, but won’t consider whether to overturn it

Less than two years ago, the Supreme Court ruled in McGirt v. Oklahoma by a vote of 5-4 that a large portion of eastern Oklahoma, which was reserved for the Creek Nation in the 19th century, remains a reservation for purposes of a federal law that gives the federal government sole power to try

Suing the International Finance Corporation, and Chicago police’s destroy-or-sell policy

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the International Finance Corporation is immune from suit over its actions concerning the Tata Mundra Power Plant in Gujarat, India, and whether Chicago police’s policy of destroying or selling arrestees’ property left unretrieved after 30 days violates the Fourth or Fifth Amendments.

Maskgate at the Supreme Court

Government faces skeptical bench in defending campaign-finance law challenged by Ted Cruz

Sen. Ted Cruz is no stranger to the Supreme Court. In the 1990s, he served as a law clerk to the late Chief Justice William Rehnquist, and between 2003 and 2010 he returned as a lawyer to argue nine cases there.

Court rebuffs Trump’s bid to block release of documents related to Jan. 6 riot

In a major victory for the congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, the Supreme Court turned down a request by former President Donald Trump to block the release of presidential records that the committee is seeking.

The morning read for Thursday, Jan. 20

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Court rejects “door opening” as a Sixth Amendment confrontation-clause exception

The Supreme Court on Thursday sided with a criminal defendant who said his Sixth Amendment rights were violated at a trial during which he was convicted of fatally shooting a two-year-old boy. Justice Sonia Sotomayor wrote the opinion for an 8-1 court. Justice Clarence Thomas dissented.

Revenge of the rescheduled cases: Congressional proxy voting, the ministerial exception, and more

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. Last week’s relists yielded what will likely be the last five cases to be to be argued during the current term.

Now available on Oyez: January oral argument audio aligned with the transcripts

Oyez has posted the aligned audio and transcripts from the January 2022 oral arguments at the Supreme Court.

Majority turns down request to send Texas abortion litigation back to federal district court

The Supreme Court on Thursday afternoon rejected abortion providers’ request to order a federal appeals court to send their challenge to a Texas law banning almost all abortions in the state promptly back to the friendlier confines of a federal district court in that state.

Announcement of opinions for Thursday, Jan. 20 (complete)

We live blogged as the court released the opinion in Hemphill v. New York. Click here for a list of FAQs about opinion announcements.

Justices will weigh district courts’ discretion under major 2018 sentencing-reform law

Four years ago, Congress passed the First Step Act, a bipartisan criminal-justice law that aimed to reduce overly severe sentences. Last year, the Supreme Court trimmed the scope of that law, unanimously ruling that one of its reforms does not apply to certain low-level crack-cocaine offenders.

The morning read for Wednesday, Jan. 19

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Court grapples with choice-of-law doctrines in lawsuit seeking to recover painting taken by Nazis

The Supreme Court heard argument on Tuesday in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case was brought by a family seeking to recover a Camille Pissarro painting expropriated by the Nazis and now owned by a Spanish museum.

The morning read for Tuesday, Jan. 18

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at [email protected].

Justices will hear Ted Cruz’s challenge to loan restrictions in campaign-finance law

The 2018 Texas Senate race between Republican Ted Cruz and Democrat Beto O’Rourke was one of the closest races in Texas in 40 years, with O’Rourke falling short of unseating Cruz by roughly 200,000 votes out of 8.3 million cast.

Justices debate speech and religion in spat over flag-flying at Boston city hall

The Supreme Court heard oral argument on Tuesday in a free speech case arising from Boston’s practice of allowing outside groups to fly their flags on one of the three flagpoles in front of city hall.

Over Gorsuch dissent, justices deny review in dispute over definition of “minister” for tax-exemption purposes

After adding five cases to its merits docket for the spring on Friday, the Supreme Court on Tuesday morning issued more orders from the justices’ private conference last week. As expected, the justices did not grant any new cases.

Amending the Constitution with Professor Levinson