#Biestek v. Berryhill

[empiricalscotus]

Roberts Court Jurisprudence: What Was and What Will Come

What is the Supreme Court’s most important work? Although peoples’ answers may vary, one of the Court’s most important outputs is its opinion language. Through its precedent, the Court develops standards for people to follow and for lower courts to articulate in subsequent decisions.  Precedent guides decision making from the top down and affects outcomes for millions of individuals. What cases…

[maxwellyjordan]

Relist Watch: Just the facts

John Elwood provides an unadorned roll of Monday’s relists.

  New Relists

Arlene’s Flowers Inc v. Washington, 17-108

Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.

(relisted after the June 7 conference)

  Apple, Inc v. Pepper, 17-204

Issue: Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense. CVSG: 05/08/2018.

(relisted after the June 7 conference)

  Sturgeon v. Frost, 17-949

Issue: Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the national park system in Alaska.

(relisted after the June 7 conference)

  Garza v. Idaho, 17-1026

Issue: Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.

(relisted after the June 7 conference)

  Lorenzo v. Securities and Exchange Commission, 17-1077

Issue: Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent-scheme claim.

(relisted after the June 7 conference)

  Timbs v. Indiana, 17-1091

Issue: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the 14th Amendment.

(relisted after the June 7 conference)

  Biestek v. Berryhill, 17-1184

Issue: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

(relisted after the June 7 conference)

  Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the double jeopardy clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 conference)

  Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

  Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

  Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24, May 31 and June 7 conferences)

  Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31 and June 7 conferences)

  Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31 and June 7 conferences)

  Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31 and June 7 conferences)

  North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31 and June 7 conferences)

  Thanks once again to Kevin Brooks for compiling the cases in this post.  John Elwood’s humorless commentary will return next week.

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[rolandfontana]

Biestek v. Berryhill and Judicial Review of Agency Factfinding

The new case of Biestek v. Berryhill may suggest that courts should give more deference to administrative agency factfinding. Biestek v. Berryhill and Judicial Review of Agency Factfinding syndicated from https://immigrationattorneyto.wordpress.com/

[taleshalance4]

Biestek v. Berryhill and Judicial Review of Agency Factfinding

The new case of Biestek v. Berryhill may suggest that courts should give more deference to administrative agency factfinding. from http://bit.ly/2U5PcQR from https://eliaandponto1.tumblr.com/post/184081157607

[eliaandponto1]

Biestek v. Berryhill and Judicial Review of Agency Factfinding

The new case of Biestek v. Berryhill may suggest that courts should give more deference to administrative agency factfinding. from http://bit.ly/2U5PcQR

[leeannclymer]

Blog Post: Justices Hard To Read In Key Social Security Procedure Case

A case of great importance to advocates for Social Security claimants, Biestek v. Berryhill seems straightforward in one sense, but the range of questions at oral arguments before the U.S. Supreme Court suggest it may not be, says Bill Nolan of Barnes ...read more Blog Post: Justices Hard To Read In Key Social Security Procedure Case published first on http://www.lexisnexis.com/legalnewsroom/workers-compensation/rss.aspx

[empiricalscotus]

Which Supreme Court Cases Are Generating the Most Interest?

Which Supreme Court Cases Are Generating the Most Interest?

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Kavanaugh.  The justices often find consensus early on in a term and after a largescale change only later to define or redefine their jurisprudential boundaries.

The justices released five decisions in argued cases so far, with all of them…

[maxwellyjordan]

Regulation and administrative law roundup

“Is ‘Most of Government’ Unconstitutional?” Battle over nondelegation continues after Gundy v. U.S. [Robert VerBruggen, Federalist Society panel video with Ronald Cass, David Schoenbrod, Kristin Hickman, Alan Morrison, Hon. Ryan Nelson]

Order requiring independent agencies to notify OIRA of major regulations might prove a big step [Sam Batkins and Ike Brannon, Regulation; Cato Daily Podcast with Brannon and Caleb Brown]

Biestek v. Berryhill: Supreme Court holds agencies can rely on expert witness’s opinion even when witness refuses to provide data underlying it [Federalist Society teleforum with Kent Barnett and Richard Pierce]

“The Congressional Review Act in an Election Year” [Federalist Society teleforum with Paul Larkin, Amit Narang, and Jonathan Wood]

“The Need for Humility in Policymaking: Lessons from Regulatory Policy” [Cato event video with Stefanie Haeffele, Anne Hobson, and Chelsea Follett]

If Chevron doctrine falls, will major regulatory precedents fall with it? [Christopher Marraro and Gary Marfin, WLF, Federalist Society panel video with Mark Chenoweth, David Doniger, Kristin Hickman, David Schoenbrod, Jennifer Mascott]

Tags: administrative law, expert witnesses, regulation and its reform

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[maxwellyjordan]

Thursday round-up

Yesterday the court ruled 5-4 in Lamps Plus Inc. v. Varela that the Federal Arbitration Act bars interpretation of an arbitration agreement under state law that would allow class arbitration based on general language commonly used in arbitration agreements. Greg Stohr reports at Bloomberg that the “ruling said courts shouldn’t allow class arbitration unless an agreement clearly authorizes that type of proceeding.” For The Wall Street Journal, Jess Bravin reports that “[t]he case is the latest in a string of decisions that have given the 1925 Federal Arbitration Act wide powers to displace traditional legal remedies, prioritizing business interests in reducing liability over providing redress to consumers and employees alleging injuries.” Richard Wolf reports for USA Today that “the court’s four liberal justices were so incensed that they each wrote separate dissents totaling 31 pages.” Additional coverage comes from Tony Mauro at Law.com, Andrew Chung at Reuters and Adam Liptak for The New York Times. Ross Runkel discusses the opinion at his eponymous blog. At CPR Speaks, Echo Wang and Russ Bleemer observe that the decision “demonstrates the court’s profound conservative-liberal split.”

In an op-ed for The New York Times, Linda Greenhouse looks at the court’s decision Monday to review three cases that ask whether federal law protects employees from discrimination on the basis of sexual orientation or transgender identity, suggesting that the justices’ rephrasing of the question the employer had asked the court to decide in one of the cases indicates that “there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.” At Rewire.News, Imani Gandy explores the implications for the cases of a 1989 case, Price Waterhouse v. Hopkins, that, she writes, “barred gender stereotyping—discrimination based on someone failing to act and appear according to societal expectations defined by gender.”

Briefly:

Amy Howe reports for this blog, in a post that was first published at Howe on the Court, that yesterday the court refused to block last night’s execution of John William King, who had been sentenced to death for “a gruesome crime that spurred tougher hate-crime laws.”

Evan Lee has this blog’s coverage of Tuesday afternoon’s argument in Rehaif v. United States, which asks whether, to convict defendant in U.S. illegally for violating a federal gun-possession law, prosecutors must show that defendant knew he was in the country illegally.

At the National League of Cities’ CitiesSpeak blog, Lisa Soronen writes that, after Tuesday’s oral argument in Department of Commerce v. New York, “it seems likely the 2020 census will contain a question about citizenship.”

In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “Hans von Spakovsky joins Elizabeth Slattery to talk about the Title VII sex discrimination cases coming to SCOTUS next term and the oral argument in a case challenging the Trump Administration’s plan to add a citizenship question to the 2020 census.”

At The George Washington Law Review’s On the Docket blog, Richard Pierce explains why “[i]t would be easy to interpret the six-Justice majority opinion in Biestek v. Berryhill,” holding that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that applicant can do “other work,” even if the expert does not provide the data she used to form her opinion, “as an invitation to agencies to make important decisions based on junk science, i.e., opinions of putative experts that are not supported by reliable data or analysis.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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[maxwellyjordan]

Wednesday round-up

Ariane de Vogue reports at CNN that Monday’s decision in Bucklew v. Precythe, in which the court voted 5-4 to reject a death-row inmate’s argument that, because he suffers from a rare medical condition, executing him by lethal injection would be so painful that it would violate the constitution’s ban on cruel and unusual punishment, reveal that “[t]he justices are still bitterly divided over the execution of Domineque Ray, who claimed his religious rights were violated because he could not have an imam with him in the execution chamber, in February.” Stephen Vladeck writes at Politico Magazine that “if Bucklew is a harbinger of how the new court is going to resolve such ideologically charged cases going forward, it’s going to get a lot more divisive from here.” At The Economist’s Democracy in America blog, Steven Mazie finds “the hard-hearted tone of the majority opinion” in Bucklew “shocking.” At Ikuta Matata, Sean Smith wonders whether  “Bucklew signal[s] a newly invigorated role for originalism in Eighth Amendment interpretation.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.]

At Slate, Daniel Harawa urges the court to review the case of Charles Rhines, a gay death-row inmate who claims that a biased jury deprived him of a fair trial, “because, like racial bias, anti-gay bias should not have a place in the jury box.” Additional commentary on Rhines’ cert petition comes from Adam Romero and Ilan Meyer at Jurist.

Briefly:

David Super has this blog’s opinion analysis in Biestek v. Berryhill, in which the court held that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that an applicant can do “other work,” even if the expert does not provide the data she used to form her opinion.

At The Atlantic, Garrett Epps writes that although “[s]ince the retirement of Justice Anthony Kennedy last summer, [Chief Justice John] Roberts has become the Court’s ‘median justice,’ the member whose vote will usually determine the outcome of a close case,” “Roberts … is not by temperament a ‘swing’ justice[:] His hesitations about moving the Court (and the country) to the right, it appears, are largely a question of pace.”

At The George Washington Law Review’s On the Docket blog, Theresa Gabaldon discusses the recent decision in Lorenzo v. Securities and Exchange Commission, in which the court held that a defendant can be charged with violating federal law barring fraudulent securities schemes if he distributed, but did not make, false statements.

At the Competitive Enterprise Institute blog, Devin Watkins suggests that after last week’s oral argument in Kisor v. Wilkie, in which the justices reconsidered precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, “it seems more likely than not that the court will overturn Auer.”

At the Constitutional Accountability Center blog, David Gans weighs in on Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, arguing that “[i]n adding the citizenship question, Secretary [Wilbur] Ross flouted both the government’s constitutional obligation under the Census Clause to ensure a count of all persons, as well as the laws Congress passed to safeguard the integrity of this constitutionally mandated count.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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[maxwellyjordan]

Tuesday round-up

The justices decided two cases yesterday. In Bucklew v. Precythe, the court, by a vote of 5-4, rejected a death-row inmate’s argument that, because he suffers from a rare medical condition, executing him by lethal injection would be so painful that it would violate the constitution’s ban on cruel and unusual punishment. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that the decision “revealed fault lines and considerable friction over the use of the death penalty.” David Savage reports for the Los Angeles Times that the court held that “the Constitution does not guarantee a ‘painless death’ for condemned murderers.” Additional coverage comes from Kevin Daley at The Daily Caller and Jess Bravin for The Wall Street Journal, who reports that the majority opinion “suggest[s] intense frustration with procedural claims that can keep an inmate on death row for decades after sentencing.” Commentary on the majority opinion comes from Kent Scheidegger at Crime & Consequences, who writes that it contains “the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.]

In Biestek v. Berryhill, the court held 6-3 that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that an applicant can do “other work,” even if the expert does not provide the data she used to form her opinion. At Law360, Emily Brill reports that the court directed judges to “take a ‘case-by-case’ approach to whether vocational experts’ opinions are solid enough to trust without supporting data.”

Yesterday the court also released orders from last week’s conference, agreeing to review a Fourth Amendment case next term and taking no action on several high-profile petitions involving the scope of federal employment-discrimination laws, the constitutionality of an Indiana law regulating abortions, and a couple’s refusal on religious grounds to create a custom cake for a same-sex wedding. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court.

At SCOTUS OA, Tonja Jacobi and Matthew Sag analyze last week’s oral arguments in partisan-gerrymandering cases , Rucho v. Common Cause and Lamone v. Benisek, concluding that “proportional representation was the issue of the day.” At the Moritz College of Law blog, Edward Foley offers “a way to simplify the First Amendment analysis that is causing the Court (and the litigants) so much trouble.”

Briefly:

At Law.com, Tony Mauro reports that although no other justice joined Justice Clarence Thomas’ recent opinion suggesting that the court re-examine seminal libel case New York Times v. Sullivan, “Thomas’ solo complaint was still significant, because it marked the first time in decades that Sullivanwas under the court’s microscope.”

At The George Washington Law Review’s On the Docket blog, Cori Alonso-Yoder weighs in on the court’s decision in Nielsen v. Preap, in which the court held that a noncitizen does not become exempt from mandatory detention if, after he has been released from criminal custody, immigration agents do not take him into immigration custody immediately, arguing that “long term detention of several categories of individuals without the opportunity for judicial review … should be justified with some stronger stuff than the mere diagramming of sentences.”

At Take Care, Joshua Matz “explain[s] why the government’s arguments against judicial review” in Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, “are meritless.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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[maxwellyjordan]

Live blog of orders and opinions (Update: Completed)

We live-blogged as the Supreme Court released orders from the March 29 conference (which included a grant in Kansas v. Glover) and its decisions in Bucklew v. Precythe and Biestek v. Berryhill. The transcript is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

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[maxwellyjordan]

Empirical SCOTUS: Looking back to assess the potential future of oral arguments

Over the past several years the Supreme Court has undergone substantial change. Not only has the face of the court shifted, but so has its center, with the departure of Justice Anthony Kennedy. Oral arguments offer the only vantage point into the interactions and dynamics between the justices and provide some context for how they might vote, along with possible voting coalitions. Through this lens we can get a sense of how these changes affected existing and newly appointed justices. This situation is obviously quite dynamic, as Justice Ruth Bader Ginsburg was not able to take the bench during the January oral argument sitting and her current state of health is still in question.

Although many are speculating about the actions of the current “conservative” Supreme Court (see these recent examples from CNN, USA Today and The Hill), the court’s specific decisions are still very much up in the air, as are the justices’ decision-making processes. Earlier this month, for instance, Chief Justice John Roberts surprised many by dissenting in Stokeling v. United States along with Justices Sonia Sotomayor, Ginsburg and Elena Kagan, while Justice Stephen Breyer was in the court’s majority. As this example shows, not all of the court’s close decisions will split the justices 5-4 along ideological lines with Roberts in the majority. The justices reach their determinations in part through reading briefs and in part from participating in oral arguments. The changes on the court – from the addition of Justices Neil Gorsuch and Brett Kavanaugh, to the loss of Justice Antonin Scalia and Kennedy, and also the absence of Ginsburg from the bench — all affect these components.

Looking at data from three oral argument sittings – December 2017, December 2018 and January 2019 — we get some perspective on the shifts resulting from the changing faces on the court. We have the departure of Kennedy, the addition of Kavanaugh and the absence of Ginsburg all built into these months of data.

We begin with a look at how the changes to the court affected the justices’ spoken word counts across these sessions.

Click to enlarge.

The changes to the justices’ relative word counts are noticeable in a few areas. Kagan took the biggest leap after Kennedy’s departure, moving from speaking around 11.5 percent of the justices’ words to over 18 percent of them. Justice Samuel Alito also spoke more after Kennedy’s departure, although he dropped off a bit in the January sitting. Roberts showed a mild increase as well. Sotomayor’s word counts, on the other hand, were cut almost in half across the same period. Although Ginsburg was the least talkative of the justices in the December 2018 sitting, she still spoke almost 7 percent of the justices’ words. This 7 percent was then redistributed among the remaining justices in the January sitting. Interestingly enough, the three more liberal justices on the court persisted as the most vocal justices at oral argument even without Ginsburg and on a court where the ideological center is far to their right.

Words spoken give a sense of the justices’ presence at oral arguments, although they provide little context, because words can be utilized for many purposes. Question counts (given by sentences framed as questions in the oral-argument transcripts) tell us more about how active the justices were in trying to extract information (or concessions) from the arguing attorneys.

Click to enlarge.

The most telling shifts across these periods may be those for Sotomayor and Alito. Sotomayor has been the lead questioning justice for many recent sittings. She took a back seat in December 2018, however, as Alito usurped the role of lead questioner in that sitting. Kagan and Breyer both asked a greater percentage of questions in the sitting without Ginsburg, possibly picking up some of the liberal slack. Roberts and Kavanaugh have both stayed fairly consistent with the percentage of the justices’ total questions they asked across the last two sittings.

A third oral-argument metric, words per utterance, shows the extent to which the justices made use of their speaking opportunities. In some instances this relates to efficiency, while in others it shows differences in verbosity.

Click to enlarge.

Kagan took the biggest jump from the first sitting in the figure to the third. Alito, on the other hand, dipped after the December 2017 sitting. Kavanaugh’s increase from December 2018 to January 2019 is especially notable, as it suggests he is taking a greater role in his talking turns even if his overall word counts are not increasing significantly.

To probe these differences in more detail we can look at the types of questions the justices asked. Different question types are designed to elicit different types of responses and information.

First a look at the types for December 2017.

Click to enlarge.

Kennedy was a leader in asking “has” and “was” questions in this period. Ginsburg took the biggest number of “who” type questions and was one of the leaders of “what” questions as well. Here is an example of Ginsburg’s “who” questions from Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

“What” questions tend to be the leading type of question across sittings. Gorsuch was a main contributor to “have,” “will” and “were” type of question, while Alito was a leader in “do, does, did” questions. We can track changes in these question types by juxtaposing this figure with one based off data from the January 2019 sitting.

Click to enlarge.

Sotomayor was the only justice to have a “had” question during this sitting (she had three), although the rest of the justices all had “have” questions. Gorsuch was a leader in “would,” “are” and “why questions. Kavanaugh led the way with “do, does, did” questions and with “is” questions.

Here is an example of a Kavanaugh “is” question from Obduskey v. McCarthy & Holthus LLP.

Of course, question-type counts tell little about the substance of the justices’ questions. We can get a better sense of substance through a look at the justices’ actual word choices. Specific word counts can be modified a bit by looking at differential word counts between justices of interest. This shows us substance in terms of areas in which certain justices are perceptibly more interested than others. The two justices’ word differentials I examined were between Kavanaugh and Gorsuch and Kavanaugh and Ginsburg. This then tracks changes to the court’s composition between December 2017 and December 2018 with the addition of Kavanaugh and between December 2018 and January 2019 with the absence of Ginsburg. The tables each show the top words based on the different usage by the two justices. For example, if Gorsuch said “travel” 15 times and Kavanaugh said it 16 times, this would likely not show up even though both justices had high usage of this term. Instead we might hypothetically see “process” if Gorsuch said it 15 times and Kavanaugh only said it three times. First a look at the differences based on words Gorsuch used more frequently than Kavanaugh in the December 2018 sitting.

Click to enlarge.

Gorsuch tends to be the justice who most frequently refers to “counsel” in his questions and statements. He was quite involved in the arguments in Biestek v. Berryhill, when he asked multiple questions related to “experts” and “evidence.” Kavanaugh only took three short talking turns in these arguments and did not use either of these terms. Gorsuch also frequently refers back to specific “question[s]” as he does in the example below from oral arguments in Timbs v. Indiana.

Kavanaugh’s differential from Gorsuch’s (where Kavanaugh’s relative usage was greater) for the December 2018 sitting looks like the following.

Click to enlarge.

Kavanaugh had several questions about differential treatment of federal and state employees in Dawson v. Steager. He (unlike Gorsuch) also pursued several questions about motions for reconsideration in Nutraceutical Corp. v. Lambert.

The differences between Ginsburg’s and Kavanaugh’s term usages also highlight some of the justices’ relative foci. First a look at terms Kavanaugh used more frequently than Ginsburg during the December 2018 sitting.

Click to enlarge.

Notice that “employees” and “reconsideration” are at the high end of this figure as well. Kavanaugh also focused on the extent that entrenched understandings such as stare decisis must be “wrong” to pursue change from them in Gamble v. U.S.

Ginsburg had a higher relative usage of the following terms than Kavanaugh.

Click to enlarge.

She asked several questions about the permission to “appeal” and “final judgment[s]” in the Nutraceutical Corporation case. She also asked questions that involved “I thought” more frequently than Kavanaugh during this sitting.

These differences point to examples of areas in which certain justices place much more emphasis than others. These are important to the justices’ ultimate individual decisions along with their alignments in each case. They point to the justices’ topics of interest and portend where they might look in future cases. Perhaps most importantly, they show how justices think differently from one another, and this helps assemble a fuller picture of the components that make up the court’s opinions. Although we can also look at the justices’ speaking trends in isolation to show their particular areas of emphasis, this provides less information about the relative importance of terms to particular justices. Such isolated text data still gives us insights like the fact that Kavanaugh said “think” 34 times during the January 2019 arguments. He also referred to the “Race Horse” case (Ward v. Race Horse) 17 times in the Herrera v. Wyoming arguments that took place in the same sitting.

The ongoing changes on the Supreme Court will continue to disrupt stability in the oral-argument statistics and the court’s ever-changing caseload will shift the justices’ subjects of interest as well. Even with the changes, we should expect Breyer, Kagan and Sotomayor to take the bulk of speaking opportunities at oral argument based on their past conduct. By tracking these similarities and differences we can locate not only whether but also how the justices participate in oral arguments. This is especially important for gaining a greater understanding of the court’s newest addition, Kavanaugh, as he has only written one majority opinion and so has revealed little about how his decision-making will ultimately affect the court’s outcomes.

This post was originally published at Empirical SCOTUS.

* * *

Past cases linked to in this post:

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) Stokeling v. United States, No. 17-5554 (U.S. Jan. 15, 2019) Ward v. Race Horse, 163 U.S. 504 (1896)

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[maxwellyjordan]

Empirical SCOTUS: Which Supreme Court cases are generating the most interest?

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Brett Kavanaugh. The justices often find consensus both early on in a term and after a largescale change, defining or redefining their jurisprudential boundaries only later.

The justices have released five decisions in argued cases so far, all of them free even from concurrences. This is a new high count for unanimous decisions without a concurrence under Chief Justice John Roberts. With five signed decisions so far this term, the Supreme Court is moving at a faster pace than it did last term (which is a good thing because last term the justices were on a record-setting slow pace). The justices have yet to hear a case that sparks great interest from the general public. This might come as no surprise, as such closely watched cases are often, although not always, argued later in a term.

Yesterday’s argument in Franchise Tax Board of California v. Hyatt marked the 37th argument of the term. There is at least a modicum of built-in interest in this case because this is its third visit to the Supreme Court. But the question remains: Which cases are grabbing the public’s attention more than others? This raises a follow-up question: How can we measure this? Professors Lee Epstein and Jeff Segal developed a measure that is often cited in political science and legal scholarship in their 2000 article looking at which cases garnered New York Times front-page coverage the day after the decision was released. Others, including Empirical SCOTUS, have tried to move this measure forward by creating hierarchies of importance.

This post takes another cut at measuring cases that generated the most interest so far this term, much like a snapshot of the current Supreme Court landscape. It does this by taking multiple measures of case “interest” and combining them into an aggregate measure. Things might (and probably will) change in the coming days and months.

Multiple measures are used to gauge interest levels. The first measure looks at interest from (1) lower-court judges based on the number of times the lower-court opinions in these cases were cited. The number of interested parties was measured by looking at cases with the most (2) cert amicus and (3) merits amicus briefs filed. (4) SCOTUSblog case views by month (for October, November, and December 2018) were used to gauge interest from a more general yet still somewhat targeted audience. Another measure was (5) coverage from a top-five newspaper based on circulation before a case was argued. Finally, the cases that have generated the most general interest from Good Judgment’s forecasting service were also noted, although the sample size was too small to add this into the aggregate measure.

[Note: Google Trend data was also initially used as a measuring tool, but this proved too complex to use because multiple permutations of spellings were listed for most cases and because Google Trends does not provide measures for phrases without a sufficient number of hits. This seems like a potentially useful resource down the line, however. Also note: Although merits and cert amicus filings are highly correlated with one another, lower-court opinion citations are negatively correlated with cert and merits amicus filings, leading to the inference that these briefs and opinion cites are measuring different attributes of “interest.”]

The top 15 cases were ordered in each category and the overall counts were retained for certain variables. Although the absolute counts are not used in generating the overall measure of interest, they provide greater differentiation between cases as they are on a continuous rather than ordered scale. The first category with a count measure is cert-stage amicus filings.

Click graph to enlarge.

Cases in areas that affect civil liberties often generate much interest from a diverse set of groups that want the Supreme Court to take such cases, and this occasion is no different. The case with the most cert-stage amicus filings is The American Legion v. American Humanist Association, another case in a long line that looks at the placement of religious symbols on public property. Interesting and idiosyncratic cases have also generated considerable attention; Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a case involving the designation and preservation of habitats for endangered species, has the second most cert-stage amicus filings.

The list of cases with the most amicus briefs filed on the merits looks at bit different, but this is mainly due to the fact that the Supreme Court has yet to receive these filings for many of the yet-to-be-argued cases (as is the situation with American Legion).

Click graph to enlarge.

Weyerhaeuser leads in the merits amicus category with 28 such briefs filed. Just behind Weyerhaeuser is the class action “cy pres” (proceeds held in trust) case Frank v. Gaos with 27 amicus briefs filed. Third in this category is Knick v. Township of Scott, Pennsylvania, which examines questions of federalism in the context of eminent domain proceedings. We should expect to see many more amicus briefs filed on the merits of upcoming cases that appeal to and affect larger swaths of the general population.

A third measure that looks at the question of interest (and attention) from an entirely different angle is citations to lower court opinions. The nature of the cites, whether they were positive, negative or neutral, is not as significant as whether these cases were cited at all. Citations convey that a case is already notable for a particular proposition and a bevy of cites indicates that a greater portion of the judiciary is aware of a given case, even if this population is mainly restricted to a judicial circuit.

Click graph to enlarge.

The case cited far and away the most times in the lower court is U.S. v. Stitt with 112 cites. Stitt is one of many cases that have looked at aspects of the Armed Career Criminal Act, and the extent of citations to the lower-court opinion relates to how this case affects criminal sentencing. Coming next, with a much more modest 41 cites to the lower-court opinion, is Biestek v. Berryhill, which looks at expert-testimony rules of evidence. Third on this list, with 32 cites to the lower-court opinion, is Madison v. Alabama, which examines whether a prisoner may be executed even if a mental disability leaves him with no memory of the underlying offense.

SCOTUSblog case-page views supply another count measure of interest in the various cases, and this time from a larger segment of the public. Because these numbers shift by month depending on when cases are argued, three months of data were used to gauge the most frequently accessed case pages. Beginning with October, the 15 most-viewed case pages in order of views are the following:

Click graph to enlarge.

The page for Gamble v. U.S., a case argued in the December sitting that looks at the separate sovereigns doctrine in the context of double jeopardy, was viewed the most in the October block. After Gamble were Madison v. Alabama and one of the first cases in which Kavanaugh participated in oral argument — Stokeling v. U.S.

The most-viewed case pages in November were for cases argued in the December sitting.

Click graph to enlarge.

The top-viewed case in November, Timbs v. Indiana, looks at whether the excessive fines clause of the Eighth Amendment is incorporated to the states under the 14th Amendment. The other top cases by page views were the Indian Territory boundary case, Carpenter v. Murphy, and Apple Inc. v. Pepper, which looks at whether consumers can sue deliverers of goods for antitrust damages in certain instances.

The case pages viewed the most in December are not all yet scheduled for oral argument.

Click graph to enlarge.

The most-viewed page was for Kisor v. Wilkie, which examines deference to agencies’ decisions. Next is Gamble, the top-viewed case in October, followed by American Legion, set for argument in the February sitting.

These six measures were all used to create orders of cases from one to 15, with one as the case that generated most interest in these categories. A seventh category was a binary variable for news coverage, which was coded if a case was discussed in a major newspaper prior to oral argument. Cases that were ranked in the top 15 in at least four of these categories had their orders averaged (The newspaper measure was used to count if a case appeared in at least four measures but it was not included in the average because it is not an ordered variable.).

The following is an index that runs from one to 15 with one correlating with most interest and 15 correlating with least interest within the universe of relevant cases. The cases on this index, beginning with those that generated the most interest so far this term, are:

Click graph to enlarge.

Ironically, even though Good Judgment only looked at a small subset of cases so far this year, the top two cases in terms of its forecasts, Madison v. Alabama and Gamble v. United States, are also the top two cases generating the most interest so far this term. All of the cases in the top five and many in the top 10 were discussed above due to their relevance in one or more of the measured areas.

With the partisan-gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause now on the court’s docket, relative case interest will inevitably shift as the term moves forward. We will also gain more knowledge of group interest in cases pending argument as more amicus briefs are filed on the merits. One of the complexities of measuring interest level is that it is fluid and changes over time as well as when the choices vary. For a term that so far lacks blockbuster cases, however, this measure allows room for differentiation that might otherwise be opaque.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: Which Supreme Court cases are generating the most interest? appeared first on SCOTUSblog.

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[maxwellyjordan]

Empirical SCOTUS: Which Supreme Court cases are generating the most interest?

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Brett Kavanaugh. The justices often find consensus both early on in a term and after a largescale change, defining or redefining their jurisprudential boundaries only later.

The justices have released five decisions in argued cases so far, all of them free even from concurrences. This is a new high count for unanimous decisions without a concurrence under Chief Justice John Roberts. With five signed decisions so far this term, the Supreme Court is moving at a faster pace than it did last term (which is a good thing because last term the justices were on a record-setting slow pace). The justices have yet to hear a case that sparks great interest from the general public. This might come as no surprise, as such closely watched cases are often, although not always, argued later in a term.

Yesterday’s argument in Franchise Tax Board of California v. Hyatt marked the 37th argument of the term. There is at least a modicum of built-in interest in this case because this is its third visit to the Supreme Court. But the question remains: Which cases are grabbing the public’s attention more than others? This raises a follow-up question: How can we measure this? Professors Lee Epstein and Jeff Segal developed a measure that is often cited in political science and legal scholarship in their 2000 article looking at which cases garnered New York Times front-page coverage the day after the decision was released. Others, including Empirical SCOTUS, have tried to move this measure forward by creating hierarchies of importance.

This post takes another cut at measuring cases that generated the most interest so far this term, much like a snapshot of the current Supreme Court landscape. It does this by taking multiple measures of case “interest” and combining them into an aggregate measure. Things might (and probably will) change in the coming days and months.

Multiple measures are used to gauge interest levels. The first measure looks at interest from (1) lower-court judges based on the number of times the lower-court opinions in these cases were cited. The number of interested parties was measured by looking at cases with the most (2) cert amicus and (3) merits amicus briefs filed. (4) SCOTUSblog case views by month (for October, November, and December 2018) were used to gauge interest from a more general yet still somewhat targeted audience. Another measure was (5) coverage from a top-five newspaper based on circulation before a case was argued. Finally, the cases that have generated the most general interest from Good Judgment’s forecasting service were also noted, although the sample size was too small to add this into the aggregate measure.

[Note: Google Trend data was also initially used as a measuring tool, but this proved too complex to use because multiple permutations of spellings were listed for most cases and because Google Trends does not provide measures for phrases without a sufficient number of hits. This seems like a potentially useful resource down the line, however. Also note: Although merits and cert amicus filings are highly correlated with one another, lower-court opinion citations are negatively correlated with cert and merits amicus filings, leading to the inference that these briefs and opinion cites are measuring different attributes of “interest.”]

The top 15 cases were ordered in each category and the overall counts were retained for certain variables. Although the absolute counts are not used in generating the overall measure of interest, they provide greater differentiation between cases as they are on a continuous rather than ordered scale. The first category with a count measure is cert-stage amicus filings.

Click graph to enlarge.

Cases in areas that affect civil liberties often generate much interest from a diverse set of groups that want the Supreme Court to take such cases, and this occasion is no different. The case with the most cert-stage amicus filings is The American Legion v. American Humanist Association, another case in a long line that looks at the placement of religious symbols on public property. Interesting and idiosyncratic cases have also generated considerable attention; Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a case involving the designation and preservation of habitats for endangered species, has the second most cert-stage amicus filings.

The list of cases with the most amicus briefs filed on the merits looks at bit different, but this is mainly due to the fact that the Supreme Court has yet to receive these filings for many of the yet-to-be-argued cases (as is the situation with American Legion).

Click graph to enlarge.

Weyerhaeuser leads in the merits amicus category with 28 such briefs filed. Just behind Weyerhaeuser is the class action “cy pres” (proceeds held in trust) case Frank v. Gaos with 27 amicus briefs filed. Third in this category is Knick v. Township of Scott, Pennsylvania, which examines questions of federalism in the context of eminent domain proceedings. We should expect to see many more amicus briefs filed on the merits of upcoming cases that appeal to and affect larger swaths of the general population.

A third measure that looks at the question of interest (and attention) from an entirely different angle is citations to lower court opinions. The nature of the cites, whether they were positive, negative or neutral, is not as significant as whether these cases were cited at all. Citations convey that a case is already notable for a particular proposition and a bevy of cites indicates that a greater portion of the judiciary is aware of a given case, even if this population is mainly restricted to a judicial circuit.

Click graph to enlarge.

The case cited far and away the most times in the lower court is U.S. v. Stitt with 112 cites. Stitt is one of many cases that have looked at aspects of the Armed Career Criminal Act, and the extent of citations to the lower-court opinion relates to how this case affects criminal sentencing. Coming next, with a much more modest 41 cites to the lower-court opinion, is Biestek v. Berryhill, which looks at expert-testimony rules of evidence. Third on this list, with 32 cites to the lower-court opinion, is Madison v. Alabama, which examines whether a prisoner may be executed even if a mental disability leaves him with no memory of the underlying offense.

SCOTUSblog case-page views supply another count measure of interest in the various cases, and this time from a larger segment of the public. Because these numbers shift by month depending on when cases are argued, three months of data were used to gauge the most frequently accessed case pages. Beginning with October, the 15 most-viewed case pages in order of views are the following:

Click graph to enlarge.

The page for Gamble v. U.S., a case argued in the December sitting that looks at the separate sovereigns doctrine in the context of double jeopardy, was viewed the most in the October block. After Gamble were Madison v. Alabama and one of the first cases in which Kavanaugh participated in oral argument — Stokeling v. U.S.

The most-viewed case pages in November were for cases argued in the December sitting.

Click graph to enlarge.

The top-viewed case in November, Timbs v. Indiana, looks at whether the excessive fines clause of the Eighth Amendment is incorporated to the states under the 14th Amendment. The other top cases by page views were the Indian Territory boundary case, Carpenter v. Murphy, and Apple Inc. v. Pepper, which looks at whether consumers can sue deliverers of goods for antitrust damages in certain instances.

The case pages viewed the most in December are not all yet scheduled for oral argument.

Click graph to enlarge.

The most-viewed page was for Kisor v. Wilkie, which examines deference to agencies’ decisions. Next is Gamble, the top-viewed case in October, followed by American Legion, set for argument in the February sitting.

These six measures were all used to create orders of cases from one to 15, with one as the case that generated most interest in these categories. A seventh category was a binary variable for news coverage, which was coded if a case was discussed in a major newspaper prior to oral argument. Cases that were ranked in the top 15 in at least four of these categories had their orders averaged (The newspaper measure was used to count if a case appeared in at least four measures but it was not included in the average because it is not an ordered variable.).

The following is an index that runs from one to 15 with one correlating with most interest and 15 correlating with least interest within the universe of relevant cases. The cases on this index, beginning with those that generated the most interest so far this term, are:

Click graph to enlarge.

Ironically, even though Good Judgment only looked at a small subset of cases so far this year, the top two cases in terms of its forecasts, Madison v. Alabama and Gamble v. United States, are also the top two cases generating the most interest so far this term. All of the cases in the top five and many in the top 10 were discussed above due to their relevance in one or more of the measured areas.

With the partisan-gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause now on the court’s docket, relative case interest will inevitably shift as the term moves forward. We will also gain more knowledge of group interest in cases pending argument as more amicus briefs are filed on the merits. One of the complexities of measuring interest level is that it is fluid and changes over time as well as when the choices vary. For a term that so far lacks blockbuster cases, however, this measure allows room for differentiation that might otherwise be opaque.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: Which Supreme Court cases are generating the most interest? appeared first on SCOTUSblog.

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[maxwellyjordan]

Tuesday round-up

Today the Supreme Court will hear oral argument in two cases. The first is Herrera v. Wyoming, which asks whether the Crow Tribe retains treaty rights to hunt on land in Wyoming’s Bighorn National Forest. Gregory Ablavsky previewed the case for this blog. Cecilia Bruni and Trevor O’Bryan have a preview at Cornell Law School’s Legal Information Institute. At Bloomberg Law, Jordan Rubin reports that this is “the third high court clash this term asking the justices to parse an old treaty’s modern effect against the backdrop of the government’s serial broken promises to Indian tribes,” but that it “differ[s] from the others in at least one important respect: Herrera has the Trump administration’s support.”

This morning’s second argument is in Fourth Estate Public Benefit Corp. v. Wall-Street.com, in which the court will decide when registration of a copyright claim has been made under the copyright statute. Jessica Litman had this blog’s preview. Julia Hollreiser and Benjamin Rodd preview the case for Cornell.

Yesterday the court issued additional orders from its conference on Friday; the justices did not grant any new cases, and they issued two summary opinions and asked for the views of the solicitor general in four cases, two of which are related. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Crime & Consequences, Kent Scheidegger looks at the summary decisions.

For The Washington Post, Robert Barnes reports that “Justice Ruth Bader Ginsburg is still recuperating from cancer surgery and was not on the bench Monday when the Supreme Court began a new round of oral arguments, the first time in her career as a justice that she has missed a session.”  Mark Sherman reports for AP that “Chief Justice John Roberts said in the courtroom Monday that Ginsburg would participate in deciding the argued cases ‘on the basis of the briefs and transcripts of oral arguments.’”

Briefly:

At The National Law Journal (subscription or registration required), Tony Mauro and Marcia Coyle report that “[t]he first bill introduced by the Democratic-led House of Representatives last week contains a provision that would include U.S. Supreme Court justices for the first time in a newly created code of conduct.”

Richard Wolf reports for USA Today that “President Donald Trump is betting big on the Supreme Court in 2019 to revive controversial policies on issues ranging from immigration and border security to transgender soldiers in the military.”

At Education Week’s School Law Blog, Mark Walsh reports that the court “on Monday declined to hear the appeal of a Missouri school district over its at-large school board elections, which a federal appeals court struck down last year as a violation of the Voting Rights Act of 1965.”

Subscript Law has a graphic explainer for Obduskey v. McCarthy & Holthus LLP, which was argued yesterday and which asks whether the definition of “debt collector” under the Fair Debt Collection Practices Act includes attorneys who effect nonjudicial foreclosures.

At The World and Everything In It (podcast), Mary Reichard discusses the chief justice’s year-end report, along with the oral arguments in two cases: Republic of Sudan v. Harrison, which involves service of process on foreign governments under the Foreign Sovereign Immunities Act, and Biestek v. Berryhill, in which the justices considered social security benefits claimants’ ability to scrutinize the data on which benefits denials are based.

At Just Security, Marty Lederman considers the pending stay motions and petitions for certiorari before judgment in a group of challenges to the Trump administration’s ban on service in the military by most transgender people, in order “to highlight some interesting ways in which DOJ has recently tried to frame the merits of the case, and, more broadly, to unpack just what’s at stake in these challenges.”

At Crime & Consequences, Kent Scheidegger writes that United States v. Davis, which the court agreed on Friday to review and which asks whether the definition of “crime of violence” is unconstitutionally vague in the context of federal criminal prosecutions involving firearms, will test “[h]ow far … we stretch the interpretation of a statute to avoid a constitutional problem.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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