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The Supreme Court will release opinions in argued cases on Friday at 10 a.m. We will begin live-blogging with First Mondays at this link at 9 a.m., where readers can sign up for an email reminder when we start the live blog.
Amy Howe details the 10 argued cases that remain undecided from the October 2017 term in this post.
We're hosting an online symposium on October Term 2017’s separation-of-powers and administrative-law decisions. Contributions are available at this link.

Berkshire Hathaway CEO Warren Buffett has long lamented the fact that he pays a lower tax rate than his secretary. Now, top executives at Berkshire Hathaway-owned BNSF railroad will pay an even lower rate than their counterparts elsewhere.

That is the outcome of the Supreme Court’s 5-4 ruling in Wisconsin Central Ltd. v. United States, which holds that railroad employees are exempt from federal employment taxes on stock-based compensation. The decision delivers a victory for Wisconsin Central and its parent company, Canadian National Railway, which stand to reap a $13 million refund as a result of the ruling, as well as for other large railroads such as BNSF. It’s a setback for the Internal Revenue Service, opening up a new loophole for taxpayers to exploit. And perhaps most significantly, it’s another triumph for a textualist mode of statutory interpretation that prioritizes dictionary definitions over practical consequences.

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Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University Moritz College of Law. He was part of an amicus brief of constitutional and administrative law scholars in support of the SEC in Lucia v. Securities and Exchange Commission.

In 2004, Harvard law professor Mark Tushnet wrote an influential article called “Constitutional Hardball.” By that term, he was referring to moves by the political branches of government that are “without much question within the bounds of existing constitutional doctrine,” but that conspicuously violate the conventional assumptions or conventions about institutional behavior that underlie that doctrine. A recent example Tushnet might have been able to foretell would be the 2016 decision of the Republican Senate majority to hold open Justice Antonin Scalia’s Supreme Court seat rather than consider the nomination of Chief Judge Merrick Garland to be Scalia’s successor.

The Supreme Court’s decision today in Lucia v. Securities and Exchange Commission, along with its other much-anticipated decisions, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Gill v. Whitford, seems to be playing a different game, which I’ll call “Constitutional dodgeball.” It is roughly akin to what Alexander Bickel called the “passive virtues” or what Cass Sunstein has labeled “judicial minimalism,” although, in each of these three cases, the court did reach and decide a question of constitutional magnitude. It is just that the justices chose and decided the constitutional issue in front of them in a way that conspicuously appeared to avoid, at least temporarily, the questions of constitutional interpretation that, in each case, were most ideologically laden.

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On June 27 from 1 p.m. to 2 p.m., the Washington Legal Foundation will host a panel entitled, “The U.S. Supreme Court: How Free Enterprise Fared in October Term 2017.” Panelists include Michael Carvin, Melissa Arbus Sherry and Matthew McGill. The event will be live-streamed on the foundation’s website; to RSVP, email glammi@wlf.org.


Justice Anthony Kennedy had essentially invited a test case to overrule Quill Corp. v. North Dakota and its physical-nexus rule for the states being able to require out-of-state retailers to collect sales tax. So it was not a huge surprise that Kennedy had the opinion for the court today in South Dakota v. Wayfair.

Except, of course, that the oral argument in the case in April had left many observers wondering whether the court could get to a majority willing to overrule the 1992 Quill decision and its 1967 predecessor, National Bellas Hess Inc. v. Illinois Department of Revenue.

In an unusual voting lineup, the court did reach such a majority, and Kennedy announced that the physical-presence rule was unsound and incorrect, and that Quill and Bellas Hess were overruled.

Justice Kennedy with opinion in South Dakota v. Wayfair (Art Lien)

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Jeffrey McCoy and Oliver Dunford are attorneys at Pacific Legal Foundation in Sacramento, California. They authored an amicus brief filed by Pacific Legal Foundation in support of Raymond Lucia in Lucia v. Securities and Exchange Commission. Pacific Legal Foundation recently filed three lawsuits on behalf of nine clients challenging the issuance of Food and Drug Administration regulations as violating the appointments clause.

At first blush, Lucia v. SEC may seem like a case that only those in the financial industry, and certain individuals in the legal community, would take interest in. But the Supreme Court’s opinion could have far reaching consequences for the federal government’s various administrative agencies. At issue in Lucia was the interpretation of the appointments clause of the Constitution, which lays out certain procedures for appointing “officers of the United States.”

Raymond J. Lucia is a financial advisor who marketed a retirement savings strategy. The Security and Exchange Commission charged Lucia with violating the Investment Advisers Act, alleging that he misled prospective clients about his investment strategy. His case was heard by an administrative law judge, Cameron Elliot, who issued a decision concluding that Lucia had violated the act and imposing a $300,000 penalty and a lifetime ban from the investment industry.

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It may be years before the implications of the Supreme Court’s opinion this morning in Lucia v. Securities and Exchange Commission are clear, but at first glance the opinion strikes a major blow at one of the centerpieces of the administrative state – the tradition of civil-service appointments of independent administrative law judges. Specifically, the court holds that the appointments of the administrative judges of the Securities and Exchange Commission violate the Constitution’s appointments clause because they were appointed by commission staff rather than the commission itself. Because the opinion contains no obvious narrowing limitations, it is entirely possible that it will extend to invalidate all existing appointments of ALJs.

Justice Kagan with opinion in Lucia v. SEC (Art Lien)

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The justices are expected to take the bench again on Friday, June 22, to issue opinions in argued cases. After this morning’s four opinions, there are 10 cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

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Posted in Merits Cases

We live-blogged as the Supreme Court released opinions in argued cases. The justices decided Lucia v. Securities and Exchange CommissionSouth Dakota v. Wayfair Inc.Pereira v. Sessions and Wisconsin Central Ltd. v. United States

Guest bloggers Dan Epps, Ian Samuel and Leah Litman of First Mondays live-blogged from 9 to 9:45 a.m.

The transcript of the live blog is available below and at this link.

Posted in Live

Thursday round-up

By on Jun 21, 2018 at 7:14 am

As the court prepares to release opinions this morning, Amy Howe describes the 14 remaining cases from October Term 2017 for this blog, in a post that first appeared at Howe on the Court. At Constitution Daily, Scott Bomboy highlights “four big cases still on the docket.” Kedar Bhatia offers an interim stat pack containing statistics on all this term’s cases to date for this blog.

For this blog, and originally at Howe on the Court, Amy Howe reports that the challengers in a North Carolina partisan-gerrymandering case currently on the Supreme Court’s cert docket, Rucho v. Common Cause, have “urged the justices not to send the case back to the lower court” after Monday’s decision in Gill v. Whitford, which found that Wisconsin partisan-gerrymandering plaintiffs lacked standing to challenge the statewide legislative map. At the Election Law Blog, Nicholas Stephanopolous maintains that the challengers’ supplemental briefs show that “it shouldn’t be very difficult to satisfy Whitford’s new standing requirements—at least for most plaintiffs in most districts.”

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Posted in Round-up

Today, I am happy to present our first interim Stat Pack for October Term 2017. With only a few opinion days remaining in the term, several key trends are beginning to reveal themselves. You can view the Stat Pack in its entirety here. Below, you can view each section of the Stat Pack individually and key takeaways. Continue reading »

Posted in Featured
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Term Snapshot