Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, April 29, 2022

Appellate Advocacy Blog Weekly Roundup Friday, April 29, 2022


Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • Justice Stephen Breyer sat for his final argument this week in Oklahoma v. Castro-Huerta. At the end of the argument, Chief Justice Roberts offered a tribute, saying “[f]or 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly.” Justice Breyer’s seat will be filled by the first Black woman to serve on the Supreme Court, Judge Ketanji Brown Jackson.  Hear the audio clip and see reports from AP News, CNN, and USA Today.

  • Oklahoma v. Castro-Huerta, the last argument of the term, considers whether Oklahoma has authority to prosecute crimes committed on reservation land when those crimes are committed by non-Native Americans. The case comes after a decision in McGirt v. Oklahoma that ruled that state and local law enforcement could not prosecute crimes by Native Americans committed on reservation land. The petitioner, who is not a Native American, was prosecuted by state authorities and appealed his conviction arguing that McGirt should apply to any crime committed on reservation land. Read the transcript or listen to argument and see reports from The Wall Street Journal, New York Times, and The Washington Times.

  • The Court also heard argument in a school speech case, Kennedy v. Bremerton School District, which considers the limits of prayer at school. The case weighs the rights to free speech and free exercise of religion against Constitutional precedent that prohibits schools’ pressuring students to participate in religion. The petitioner, a high school coach, was fired after praying at the 50-yard-line after each game. The coach claims that his prayer, which students and others often joined, is his individual exercise of religion. The school, however, argues that (1) the prayer is coercive and (2) the prayer can be perceived as being endorsed by the school.  Read the transcript or listen to argument and see reports from The New York Times, USA Today, and NPR. The New York Times’ The Daily covered the case on Wednesday.

  • The Supreme Court ruled that businesses that receive federal money cannot be sued for discrimination if the only harm is emotional distress. The majority decision rested on principles of contract. The court recognized that the discrimination claims against such businesses were rooted in the agreement that, in exchange for federal funds, the businesses would not discriminate and could be held accountable if discrimination occurred. Thus, because breach of contract does not include recovery for emotional harm, the Court reasoned, claims against these businesses should likewise not include recovery for emotional harm. Justice Roberts wrote, “[a]fter all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.” See the decision and reports from The Washington Post and The New York Times.

Appellate Court Opinions and News

The Fourth Circuit allowed a suit against the judiciary by a former federal public defender who argued that her constitutional rights were violated when a Federal Public Defender's Office in North Carolina was deliberately indifferent to her complaints of sexual harassment. Because the Fourth Circuit was a defendant, three judges from the Sixth, Eighth, and Tenth circuits heard the case.  The decision confirms that the Fifth Amendment "secures a federal judiciary employee's right to be free from sexual harassment in the workplace." See the ruling and reports from The Washington Post and Reuters.

Federal Appeals Courts, United States Supreme Court | Permalink


The Breyer dissent in Cummings includes a devastating quote from Justice Arthur Goldberg’s concurrence in Heart of Atlanta Motel which Roberts ignores, probably because it destroys Roberts’s reasoning. This decision continues the Rehnquist-Roberts Court’s hostility toward disability rights, of which Scalia was the leader. In 2008, disagreement with the Court’s rulings in cases interpreting the Americans with Disabilities Act led to the ADA Amendments, which listed, by name and citation, decisions which contradicted congressional intent. The Amendments passed the Senate unanimously and the House with 405 “Aye” votes. That far-left president, George W. Bush, signed the legislation without reservation. Congress and President Biden should enact legislation quickly to overturn this ruling. At least Roberts did not go along with the Kavanaugh-Gorsuch argument to reject implied causes of action.

Posted by: Kent Hull | Apr 30, 2022 2:02:38 PM

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