READ THAT BACK: Opinionpalooza, Red Ring of Death, and Twitter Wars

Who’s ready for Opinionpalooza? As of today there’s (probably) just one week left in the Supreme Court’s term. Even with the five opinions released today, there are still 12 opinions outstanding (here's the Court Reporter's unofficial list), and there may be still more (Travel ban anyone?). Okay, okay, so there’s currently nothing as momentous as Obergefell or Whole Women’s Health coming down the pike, but we might be on the verge of a determination whether appellate review of a dismissal by the Merit Systems Protection Board for want of jurisdiction in a mixed case is to be heard in a district court or the Federal Circuit! So, you know. Gear up. For…that. Woo.

And it Begins: When today began there were 17 Supreme Court opinions outstanding; we’re now down to 12 (with some interesting orders thrown in too). And for the NFL fans out there, we learned that the federal bar against disparaging trademarks, ahem, Washington's football franchise, cough, unconstitutionally restricts free speech. The justices also decided to hear what could be a game-changing gerrymandering case about whether states can go too far when considering politics when drawing voting districts. Of course, they deferred determining their jurisdiction until after they've heard the case, so they may jump through all the hoops only to leave us without a decision on the merits. Which would be pretty much the Supreme Court equivalent of "j/k lol."

Emergency Exits: Last week we suggested that the Supreme Court might try to escape the Travel Ban’s thorny religious discrimination questions by looking at procedural ones. Last week the Ninth Circuit found a statutory way to do it, too! But this option, unlike many of the truly procedural options, could result in the ban being permanently halted instead of reinstated. Whichever way the high court goes, the briefing schedule for review of the Ninth Circuit’s decision suggests that we may know by the end of the month if they’re going to take it up.

Bench Getting Deeper: Every president has the power to remake the federal judiciary—hundreds of vacancies and lifetime appointments can swing the tenor of the federal bench. Trump has been fulfilling this presidential duty with gusto, including nominating a trio of let’s call them controversial choices. It may be early, about 150 days into his term, to talk about Trump’s legacy, but whatever it is, changes in the nomination and confirmation process may leave a durable mark (subscription required).

Triple X: Microsoft recently unveiled the Xbox One X, the website for which the Court Reporter isn’t allowed to visit from the office. (Yes it’s a “gaming" website, but it’s for work, people!) They also won a case against owners of earlier generation consoles who used a procedural tactic in an attempt to get an appellate look at an adverse class status ruling. The result: Just as was predicted—a red ring of death.

First Timer: Neil Gorsuch (I hope we’ve all updated autocorrect) wrote his first opinion as a Supreme Court justice, and the reviews are in! It’s “conversational,” “a good read,” and “shows writing flair,” although “he can occasionally overdo it.” Or he’s trying too hard, depending on who you ask.

This Patent Is Your Patent: Complete the syllogism: Woody Guthrie’s guitar:fascists::___________:patents. If you said inter partes review (subscription required), you’re correct! Please note that headline said “kills patents,” not “kills patients,” which is how the Court Reporter read it every time for the first dozen or so times. Also if you ever find yourself in Tulsa, Oklahoma with some time on your hands, you should stop by the Woody Guthrie Center. Serious recommendation.


  • Oh, that Gorsuch opinion was about the Fair Debt Collection Practices Act.
  • Can Congress discriminate between unwed mothers and unwed fathers when distributing citizenship?, SCOTUS says no. Apparently, “stunningly anachronistic” stereotypes aren’t a solid basis for legislation. Who knew?
  • And who knew that “biosimilars” is a real word? For the record, Microsoft Word does not. But the Supreme Court does! And they just made it easier (subscription required) for them to get to market.
    • As an aside, can anyone tell the Court Reporter the last time the Federal Circuit was affirmed by the Supreme Court? Genuinely curious. I’ll wait.
  • And the Fourth Circuit should have deferred more to the Virginia Supreme Court’s decision that the state’s geriatric release program is a meaningful enough opportunity for those convicted as juveniles to show they’ve been rehabilitated, even though the U.S. Supreme Court might actually disagree that it is, the U.S. Supreme Court said. Got that? 

And Now…Some Culture: The U.S. has a new Poet Laureate! And Texas, at least, has a Tweeter Laureate: state Supreme Court Justice Don Willett. Like, that’s a serious thing that Texas legislators actually did. The Court Reporter doesn’t judge. Willett was also on that infamous list of 21 potential nominees to fill Scalia’s formerly empty seat on the Supreme Court, and he may be up for a spot on the Fifth Circuit. But if the rumors are to be believed, that may depend on curtailing his Twitter usage. The irony of this administration asking anyone to Tweet less is lost on precisely zero people anywhere ever. The irony of them doing so given the blogging proclivities of other actual nominees mentioned in this very issue of RTB is also pretty thick. Maybe this has something to do with it? Naaaaah.