Supreme Court


Article: Supreme Court Season of Turmoil

SCOTUS Orders: Two new cert grants

Timothy Courtney March 27, 2017

The Supreme Court issued a new Order List this morning; in addition to several GVRs there were two new grants of cert.  Opinions may issue on Tues and Wed of this week.

Cert Grants:

(1) U.S. Bank v. Village at Lakeridge: (grant limited to Question #2):   Whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in this action.

(2) Leidos, Inc. v. Indiana Public Retirement Sys.:   Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.

CVSG: Snyder v. Doe (Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders' activities within school zones imposes “punishment” in violation of the ex post facto clause.)

Other Orders of Note:

Town of Chester v. Laroe Estates:  Motion of Acting SG for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Nancy Sherman, Executrix for reconsideration of motion to be added as a respondent and for leave to participate in oral argument is denied. 

Wilson v. Sellers:  In light of the letter filed by respondent on March 15, 2017, the order inviting Adam K. Mortara, Esquire, of Chicago, Illinois, to brief and argue, as amicus curiae, in support of the judgment below is withdrawn.


Justice Scalia giving the opening remarks at the 2014 National Lawyers Convention.

Why Scalia Was Wrong About Chevron

Evan Bernick March 23, 2017

Not since the New Deal era has the scope and reach of the modern administrative state received so much public attention. It is thus unsurprising that the first Supreme Court case mentioned by Senator Diane Feinstein on the first day of Judge Neil Gorsuch’s confirmation hearings did not involve familiar hot-button issues like gun control, abortion, or campaign finance. That case was Chevron USA, Inc. v. National Resources Defense Council, Inc., a 1984 decision associated with a doctrine that requires judges to defer to federal agencies’ interpretations of statutes that they are charged with administering. [Read More]


Grilling Gorsuch and fearing the Federalist Society

Timothy Courtney March 23, 2017

Jonathan Adler writes for the Volokh Conspiracy:

This week, Senate Democrats have poked and prodded Judge Neil Gorsuch in an effort to derail his confirmation to the U.S. Supreme Court. They’ve asked about his judicial opinions, his writings, his work for the George W. Bush administration, and even his dissertation adviser. Throughout it all, Gorsuch has been largely unflappable, revealing that he is precisely what all who know him already knew: He’s an intelligent and conscientious, mainstream conservative judge who cares deeply about the judicial craft.

Not content to let the Gorsuch nomination sail through, some have sought to suggest he’s unfit because of who nominated him or who supports him. Sen. Sheldon Whitehouse (D-R.I.), for one, spent time challenging Gorsuch to disavow the “dark money” supporting his confirmation. Others have expressed dismay that Gorsuch is a member of the Federalist Society and was recommended to the president by the Society’s executive vice president, Leonard Leo, who has taken a leave from the organization to work on the nomination.

Read the full article


Fairholme Funds, Inc. v. United States: Litigation Discovery and the Most Transparent Administration in History

Kennedy, Korematsu, and the Travel Ban

John Reid February 10, 2017

President Trump’s recent travel ban sparked an interesting constitutional discussion regarding the limits of executive authority.  Assuming Judge Robart’s ruling, blocking President Trump’s executive order, does make its way to the Supreme Court, the potential Supreme Court ruling would have broad implications beyond President Trump’s executive order regarding a travel ban.  The reverberations of such a ruling will likely effect presidential powers for years to come. For the liberal bloc of the Court to have any hopes of overturning the largest portions of President Trump’s order and create new precedent they need the vote of Justice Kennedy, the so-called “swing vote” on the Supreme Court. In order to draw Justice Kennedy to their side they could offer one incredibly enticing opportunity: the chance to overturn the universally reviled Korematsu v. United States. [Read More]