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By on Jun 5, 2020 at 10:00 am
This week we highlight petitions pending before the Supreme Court that involve, among other things, challenges to Arizona voting policies, such as its out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, and its ballot-collection law, which permits only certain people to handle another person’s completed early ballot; whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral; and whether a patent owner required to license its standard-essential patents on fair, reasonable and nondiscriminatory terms has a Seventh Amendment right to a jury trial in a proceeding seeking the equitable relief of specific performance. The petitions of the week are below the jump:

By on Jun 5, 2020 at 7:06 am
Amy Howe reports for this blog, in a post that was originally published at Howe on the Court, that yesterday evening the Supreme Court put a hold on district court orders requiring the transfer of prisoners from a federal prison in Ohio where inmates are at risk from COVID-19. At NBC News, Pete Williams reports that “[i]n a brief order signed by Justice Sonia Sotomayor with no noted dissent, the court gave the Trump administration more time to challenge the judge's order in the lower courts.”

By on Jun 4, 2020 at 7:09 pm
Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

By on Jun 4, 2020 at 10:00 am
The following is a series of questions posed by Ronald Collins to Renee Knake Jefferson and Hannah Brenner Johnson in connection with their new book, “Shortlisted: Women in the Shadows of the Supreme Court” (New York University Press, 2020), which tells the untold stories of women that presidents considered as justices for the Supreme Court in the decades before Sandra Day O’Connor’s confirmation. Renee Knake Jefferson is a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics and Director of Law Center Outcomes and Assessments at the University of Houston Law Center. She is an author of two casebooks: “Professional Responsibility: A Contemporary Approach” (2020) and “Legal Ethics for the Real World: Building Skills Through Case Study” (2018). Hannah Brenner Johnson is Vice Dean for Academic and Student Affairs and an associate professor of law at California Western School of Law. Her research interests include gender-based violence and gender inequality in the legal profession. Johnson and Jefferson are also the authors of “Gender, Power, Law & Leadership” (2019). Welcome, Renee and Hannah, and thank you both for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

By on Jun 4, 2020 at 6:34 am

Briefly: At AP, Jessica Gresko reports that “when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court”; because the pandemic is keeping the court off the bench...

By on Jun 3, 2020 at 11:15 am
John Elwood reviews Monday’s relists. Even as the world grows more topsy-turvy by the minute, the Supreme Court’s relists this week are heavily a status quo affair. The gun cases are still there. The qualified immunity cases are still there. And the two ancient serial relists Andrus v. Texas and United States v. California inexplicably shuffle back for yet another curtain call this week, a trip they’ve been making almost weekly since November 2019 and January 2020, respectively. If we needed any further proof that we’re living in a dystopian future, even the relists this week reflect the basic fact of life Beyond Thunderdome: Two cases enter, one case leaves. The one case leaving is Jarchow v. State Bar of Wisconsin, 19-831, which involved a First Amendment challenge to mandatory bar membership and dues. The court denied review, but Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented to say that the court’s recent First Amendment jurisprudence has undercut the legal basis for upholding mandatory bar membership.

By on Jun 3, 2020 at 11:04 am
One of the most significant changes to federal post-conviction habeas review that Congress adopted in 1996 in the Antiterrorism and Effective Death Penalty Act was the dramatic curtailment of second-or-successive habeas suits by which state and federal prisoners can challenge their confinement. But when a prisoner moves to amend a district court judgment denying his first federal habeas petition, is that still part of the first proceeding, or is that the second bite at the apple that Congress all but eliminated 24 years ago? In its 7-2 ruling on Monday in Banister v. Davis, the Supreme Court held that it is the former—and that a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure is part of the underlying proceeding for purposes of AEDPA. Although the ruling is not likely to stand as one of the term’s more significant decisions, the opposite result—for which Justices Clarence Thomas and Samuel Alito argued in dissent—could have had sweeping ramifications.

By on Jun 3, 2020 at 6:59 am
This blog’s analysis of Monday’s decision in GE Energy Power Conversion v. Outokumpu Stainless, holding that, under an international convention governing the enforcement of foreign arbitral awards, a business that did not sign an arbitration agreement can still compel arbitration based on equitable estoppel, comes from Ronald Mann. At Courthouse News Service, Tim Ryan reports that “[t]he tangled arbitration dispute concerns several U.S. and foreign countries and the requirements of the so-called New York Convention, an international pact that requires the United States and 159 other countries to enforce arbitration agreements struck between companies in other member states.” Russ Bleemer and other discuss the decision in a video at CPR Speaks.

By on Jun 2, 2020 at 10:59 am
GE Energy Power Conversion France SAS v Outokumpu Stainless USA is a bit different from the typical Supreme Court arbitration case. Most of those cases involve a predispute arbitration agreement between a consumer and a business, in which a lower court has found some reason to allow the consumer to evade arbitration and the Supreme Court considers whether the Federal Arbitration Act justifies compelling arbitration. This case, by contrast, involves a dispute between two businesses over an international contract. The relevant body of law for that dispute is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. That treaty (to which the United States and about 160 other nations are signatories) obligates nations to enforce arbitration agreements between businesses of member states. The specific question before the court was whether it is consistent with the obligations of the United States under the New York Convention for federal courts to apply traditional doctrines of equitable estoppel that permit the enforcement of an arbitration agreement by a business that did not sign the agreement.