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Filibusters, Cheerleaders, Special Ed. and More: SCOTUS This Week

By Casey C. Sullivan, Esq. | Last updated on

The past week has been unusually busy for the Supreme Court -- and for Court watchers like us! For more than 20 hours spread over four days, Neil Gorsuch powered through his Senate confirmation hearings, covering everything from educational access for disabled students to the SCOTUS bladder. But while Gorsuch was testifying, the Court kept working, issuing opinions, hearing oral arguments, and even overruling the nominee himself.

Here are the highlights.

Gorsuch Fails to Win Enough Support, Dems Pursue Filibuster

By almost all accounts, President Trump's Supreme Court nominee did a commendable job this week, one that may ensure his confirmation. He parried attacks, avoided controversy, and failed to make any major mistakes. But, despite all that, Gorsuch may still face a filibuster.

Yesterday evening, after Gorsuch's testimony concluded, Senator Chuck Schumer announced that he would oppose Gorsuch's nomination, setting up the filibuster showdown. Schumer has since been joined by several other senators, including Pennsylvania's Bob Casey and California's Kamala Harris.

Gorsuch would need eight Democratic defectors to overcome a filibuster. If that's not possible, Senate Republicans could "go nuclear," changing the Senate rules to allow SCOTUS appointments with a simple majority. Changing the rules may be easier than overcoming a filibuster, too. Republicans would only need 51 votes and there are currently 52 Republican senators. Senate Republican leader Mitch McConnell has vowed to see Gorsuch confirmed by April 7th.

The Court Continues to Decide Cases

While much of the Supreme Court attention was aimed at the Senate this week, the Court itself continued to function as normal, issuing opinions and hearing oral arguments. In one case, the Court rejected the 10th Circuit's standard for complying with the Individuals with Disabilities Education Act. The Court, in Endrew F. v. Douglas County School District, ruled that the Tenth's requirement -- that schools provide "merely more than de minimis" educational progress to disabled students -- was insufficient. "When all is said and done," Chief Justice Roberts wrote for the unanimous Court, "a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all."

The ruling was ill-timed for Gorsuch, to say the least, as it went against a 2008 ruling of his in which he rejected an autistic child's suit under the IDEA. Gorsuch was informed of the ruling during a break in his testimony.

The Court also found itself in the middle of a copyright and cheerleading dispute this week. On Wednesday, the Court decided Star Athletica v. Varsity Brands, a suit over copyright protection for cheerleader uniform designs. Those designs can be copyrightable if they would qualify as a protectable work on their own, the Court ruled.

Finally, on Monday, the Court ruled that the Fourth Amendment applies to claims of unlawful pretrial detention. In Manuel v. City of Joliet, Elijah Manuel alleges that he was beaten, subject to racist insults, and arrested after police found "drugs" on him. We use scare quotes for a reason, as a lab test showed that the pills were not drugs at all. By that point, though, Manuel had been detained for almost two months. The Court ruled that his suit could rely on Fourth Amendment violations, rather than only due process ones. The suit "fits the Fourth Amendment ... as hand in glove," the Court wrote, but remanded the case on the more substantive issues.

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