The morning read for Friday, Aug. 5

The morning read for Friday, Aug. 5

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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 roundup@scotusblog.com.

Here’s the Friday morning read:

The post The morning read for Friday, Aug. 5 appeared first on SCOTUSblog.

Justices asked to strengthen the right to earn a living

Justices asked to strengthen the right to earn a living

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Under longstanding constitutional law, most laws survive constitutional challenges so long as the government has a “rational basis” for enacting them. This week, we highlight cert petitions that ask the court to consider, among other things, whether rational basis is the correct standard of review for a law that affects the right to “engage in a common occupation.”

Louisville, Kentucky, is home to a large community of Nepali immigrants. Because most in-home health care aides in the area speak English, Dipendra Tiwari and Kishor Sapkota wanted to establish a home care agency to provide services by and for their Nepali-speaking community. Their application for a certificate of need from the state, however, was denied. Under Kentucky law, home health agencies may not open unless the state determines there is a need for more services, and the state’s formula found the need in Louisville was already satisfied.

Tiwari and Sapkota challenged the certificate-of-need law in federal court as violating the 14th Amendment, which they say protects the right to earn a living by engaging in common occupations. The first judge to hear Tiwari’s and Sapkota’s case endorsed their view. But when that judge was appointed to a federal appeals court, the case was assigned to a new judge, who ultimately upheld the state law under the rational-basis test. The judge agreed with Kentucky’s argument that the law rationally furthers its legitimate interest in protecting existing home health services from competition. The U.S. Court of Appeals for the 6th Circuit affirmed.

In Tiwari v. Friedlander, the Louisville residents ask the justices to reevaluate the application of the rational-basis test to laws that infringe on the ability to earn a living. They argue that the right to engage in common occupations is well grounded in the nation’s history. The rational-basis test not only provides insufficient protection for that right, they contend, but it is also hard to administer. Tiwari and Sakpota cite conflicting decisions on this issue by courts around the country for evidence of that point, but they insist that the justices need look no further than their own case: One trial judge suggested Kentucky’s law would fail the rational-basis test, a second ruled that it survived by a fair margin, and the 6th Circuit held that it passed “perhaps with a low grade but with a pass all the same.”

A list of this week’s featured petitions is below:

Ritter v. Migliori
22-30
Issue: Whether the Supreme Court should vacate, under United States v. Munsingwear, Inc., a decision by the U.S. Court of Appeals for the 3rd Circuit holding that a Pennsylvania requirement for voters to sign and date a declaration when they vote by mail is preempted by the materiality provision of the Civil Rights Act of 1964.

Teva Pharmaceuticals USA, Inc., v. GlaxoSmithKline, LLC
22-37
Issue: Whether a generic drug manufacturer’s FDA-approved label that carves out all of the language the brand manufacturer has identified as covering its patented uses can be held liable on a theory that its label still intentionally encourages infringement of those carved-out uses.

Tiwari v. Friedlander
22-42
Issue: Whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation.

Lora v. United States
22-49
Issue: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).

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The morning read for Thursday, Aug. 4

The morning read for Thursday, Aug. 4

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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 roundup@scotusblog.com.

Here’s the Thursday morning read:

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The morning read for Monday, Aug. 8

The morning read for Monday, Aug. 8

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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 roundup@scotusblog.com.

Here’s the Monday morning read:

The post The morning read for Monday, Aug. 8 appeared first on SCOTUSblog.

Affirmative action cases up first in November argument calendar

Affirmative action cases up first in November argument calendar

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The Supreme Court will kick off its November argument session with the highest-profile cases of that session: challenges to the consideration of race in the admissions process at Harvard and the University of North Carolina. That news came with the release of the November argument calendar (as well as an updated October argument calendar) on Wednesday.

The justices will hear oral argument in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College on Oct. 31, the first day of the November session. When the court agreed in January to take up the two cases, it indicated that the cases would be argued and considered together. However, after the retirement of Justice Stephen Breyer and the confirmation of Justice Ketanji Brown Jackson, who until recently served on Harvard’s board of overseers, the court announced that it would hear the cases separately, which will allow Jackson to participate in the UNC case.

The affirmative action cases are two of 13 cases scheduled for oral argument in November, for a total of 10 hours of argument. Although they are the highest-profile cases on the November argument calendar, the justices will also hear oral argument in important cases involving (among other things) the power of federal district courts and the constitutionality of a federal law designed to protect against the separation of Native American families.

The justices also released a revised calendar for the October argument session. The court moved Mallory v. Norfolk Southern Railway, which had originally been one of three cases scheduled for argument on Oct. 11, to Nov. 8, leaving only two cases on Oct. 11.

Here is the full list of cases scheduled for the November argument session:

  • Students for Fair Admissions v. University of North Carolina (Oct. 31): Whether to overrule the court’s 2003 decision in Grutter v. Bollinger, holding that the University of Michigan could consider race in its undergraduate admissions process as part of its efforts to obtain a diverse student body.
  • Students for Fair Admissions v. President and Fellows of Harvard College (Oct. 31): Whether to overrule the court’s 2003 decision in Grutter v. Bollinger, holding that the University of Michigan could consider race in its undergraduate admissions process as part of its efforts to obtain a diverse student body.
  • Jones v. Hendrix (Nov. 1): Whether a federal district court has the power to review a claim that a federal prisoner’s sentence is invalid based on a Supreme Court decision, issued after the denial of his petition for post-conviction review but applying retroactively, that narrowed the scope of the federal criminal law that resulted in an enhanced sentence, when he could not previously have raised that argument under the precedent in that circuit.
  • Cruz v. Arizona (Nov. 1): Whether the Arizona Supreme Court’s ruling that a state rule of criminal procedure barred an Arizona death-row inmate from obtaining relief is an adequate and independent state-law ground for the judgment against him.
  • Bittner v. United States (Nov. 2): Whether the failure to file an annual report disclosing foreign bank accounts counts as a single violation of the Bank Secrecy Act, no matter how many foreign accounts a taxpayer has, or whether a violation occurs each time an individual account is not properly reported.
  • Axon Enterprise v. Federal Trade Commission (Nov. 7): Whether federal district courts have the power to review challenges to the constitutionality of the FTC’s structure.
  • Securities and Exchange Commission v. Cochran (Nov. 7): Whether federal district courts have the power to consider claims challenging the constitutionality of the commission’s administrative law proceedings.
  • Mallory v. Norfolk Southern Railway (Nov. 8): Whether the Constitution’s due process clause bars a state from requiring a corporation to consent to personal jurisdiction as a condition of doing business in the state.
  • Health and Hospital Corp. of Marion County v. Talevski (Nov. 8): Whether federal laws enacted under Congress’ spending clause power allow a plaintiff to file a federal civil rights claim for their violation.
  • Haaland v. Brackeen (consolidated with Cherokee Nation v. Brackeen, Texas v. Haaland, & Brackeen v. Haaland) (Nov. 9): Whether provisions of the Indian Child Welfare Act violate the Constitution.

This article was originally published at Howe on the Court.

The post Affirmative action cases up first in November argument calendar appeared first on SCOTUSblog.

With no recorded dissents, justices allow execution of Alabama man to proceed

With no recorded dissents, justices allow execution of Alabama man to proceed

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The Supreme Court on Thursday refused to postpone the execution of Joe Nathan James, who was scheduled to die in an Alabama prison at 7 p.m. EDT. James was sentenced to death for the 1994 murder of Faith Hall, his former girlfriend. Hall’s family had urged Alabama Gov. Kay Ivey to convert James’ death sentence to a sentence of life in prison, but Ivey declined to do so.

James, acting as his own lawyer, came to the Supreme Court on Wednesday and asked the justices to put his execution on hold so that he could pursue a challenge he recently filed in Alabama state court. James also sought to be executed by nitrogen gas rather than lethal injection. The state maintained that in 2018 James missed his chance to make that choice, but James contended that he was not given an adequate opportunity to do so.

James, a practicing Muslim, also suggested that executing him over the objection of Hall’s family would be inconsistent with both the Bible and the Qur’an, which emphasize forgiveness.

Alabama told the justices that they should allow the execution to go forward as scheduled. James’ contention that he should not be executed while his state-court appeal was still pending was “untenable,” the state wrote, because it would allow him and other inmates to “infinitely delay their executions simply by” filing new lawsuits.

The court also should not intervene in the dispute over the method of execution, the state said. James, the state emphasized, received proper notice of his option to choose nitrogen gas; he “simply chose not to” make that election.

The wishes of Hall’s family, the state insisted, are “worthy of consideration and respect,” but they are not “grounds for review or a stay by” the Supreme Court. And in any event, the state noted, the family had the opportunity to weigh in, when they submitted a clemency petition to Ivey.

In a brief order issued less than 40 minutes before the execution was scheduled to take place, the Supreme Court turned down James’ request without explanation. There were no dissents recorded from the order.

This article was originally published at Howe on the Court.

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The morning read for Wednesday, Aug. 3

The morning read for Wednesday, Aug. 3

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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 roundup@scotusblog.com.

Here’s the Wednesday morning read:

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The morning read for Friday, July 29

The morning read for Friday, July 29

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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 roundup@scotusblog.com.

Here’s the Friday morning read:

The post The morning read for Friday, July 29 appeared first on SCOTUSblog.

The morning read for Tuesday, Aug. 2

The morning read for Tuesday, Aug. 2

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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 roundup@scotusblog.com.

Here’s the Tuesday morning read:

The post The morning read for Tuesday, Aug. 2 appeared first on SCOTUSblog.

Water and electric quarrels test the limits of tribal power

Water and electric quarrels test the limits of tribal power

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Native American tribes have a patchwork of rights over utilities on tribal land. These rights flow from the original treaties that tribes negotiated with Congress as well as modern contracts between tribal members and non-members. This week, we highlight cert petitions that ask the court to consider, among other things, the claims of two tribes concerning the right to regulate water and power on their land.

The Colorado River flows through seven southwestern states and the reservations of several indigenous tribes, including the Navajo Nation. Use of the river’s water has prompted over a century of negotiations and lawsuits, not only between those states and tribes, but also involving the federal government. The court has held that the Department of the Interior can assert reserved water rights for Native tribes as part of the “trust obligations” stemming from an original tribal treaty. The government has done so on behalf of the Navajo Nation for water from two of the Colorado River’s main tributaries, but not from the river itself.

Claiming rights to water from the Colorado River’s mainstream, the Navajo Nation sued the government in federal court. The tribe argued that the government violated its trust obligations by asserting water rights for other tribes along the Colorado River but not for the Navajo. The government countered that it never entered any treaties with the Navajo Nation specifying the Colorado River. The U.S. Court of Appeals for the 9th Circuit agreed with the tribe. In Department of the Interior v. Navajo Nation, the government asks the justices to decide whether it owes the tribe an “affirmative” duty to assess its rights to the Colorado River.

Further north, the Crow Reservation spans a large section of southeastern Montana along the border with Wyoming. Many homes in the area receive power from the Big Horn County Electric Cooperative, one of thousands of federally funded arrangements under a New Deal-era program to bring electricity to rural Americans. When Crow Tribe member Alden Big Man repeatedly failed to pay his electric bill, the cooperative shut off his power. He sued the cooperative in tribal court, arguing that a Crow law requires the tribe’s approval before a utility can terminate service for any member of the tribe.

Native tribes generally lack jurisdiction to hear cases involving nonmembers. The court in Montana v. United States, however, recognized an exception for cases in which a nonmember enters a contract or other consensual commercial relationship with a tribe or its members. In Big Horn County Electric Cooperative, Inc. v. Alden Big Man, the cooperative asks the justices to decide whether the tribe’s claim to jurisdiction over a contract with a “federally regulated quasi-governmental entity” like itself blows the Montana exception out of proportion.

A list of this week’s featured petitions is below:

Department of the Interior v. Navajo Nation
22-51
Issue: Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

101 Houseco, LLC v. United States
22-56
Issue: Whether a third-party claimant holding title to property that has been ordered forfeited as part of a criminal defendant’s punishment must be permitted, as a matter of due process, to challenge the underlying forfeiture order.

Big Horn County Electric Cooperative, Inc. v. Alden Big Man
22-62
Issue: Whether an Indian tribal court has subject-matter jurisdiction to adjudicate a tribally created claim as an “other means” of regulating a nonmember federally funded and federally regulated electric cooperative tasked with providing electrical service to all customers within its service territory, including tribal members on Indian reservations.

Marshal v. Texas
22-63
Issues: (1) Whether the Texas Court of Criminal Appeals’ application of the equitable doctrine of laches constitutes an independent and adequate state-law ground that bars review of petitioner’s constitutional claims; (2) whether the court’s application of laches violated petitioner’s right to due process of law; and (3) whether the prosecution is estopped from relying on the doctrine of laches when its misconduct caused the delay in filing the habeas corpus application.

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