Wednesday round-up

There are two cases on the court’s argument docket this morning. The first is Washington v. United States, in which the justices will consider the scope of tribal fishing rights. Miriam Seifter previewed the case for this blog. Jonathan Kim and Eugene Temchenko have a preview at Cornell Law School’s Legal Information Institute. Subscript offers a graphic explainer for the case. At E&E News, Amanda Reilly reports that the tribes around Puget Sound are asking the “justices to uphold a 2013 court injunction ordering the state to fix hundreds of culverts that are blocking salmon from accessing upstream habitat.”

Today’s second argument is in Lagos v. United States, which asks whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under the Mandatory Victim Restitution Act. Cortney Lollar had this blog’s preview. Frederick Titcomb and Vadim Belinsky preview the case for Cornell. Subscript’s graphic explainer is here.

Yesterday the justices issued three opinions. In Sessions v. Dimaya, they ruled 5-4 that a portion of the criminal-removal provision in the Immigration and Nationality Act is unconstitutionally vague. Kevin Johnson analyzes the opinion for this blog. Subscript has a graphic explainer. For the Associated Press, Jessica Gresko reports that the decision “concerns a catchall provision of immigration law that defines what makes a crime violent,” noting that “[c]onviction for a crime of violence makes deportation ‘a virtual certainty’ for an immigrant, no matter how long he has lived in the United States.” At CNN, Ariane de Vogue and Tal Kopan report that the case “had originated during the Obama administration but had been closely watched to see if the justices would reveal how they will consider the Trump administration’s overall push to both limit immigration and increase deportations.” Additional coverage comes from Jess Bravin and Brent Kendall for The Wall Street Journal, Nina Totenberg and Domenico Montanaro at NPR, Robert Barnes for The Washington Post, Andrew Chung at Reuters, Richard Wolf at USA Today, David Savage for the Los Angeles Times, Kevin Daley at the Daily Caller, Josh Gerstein at Politico, Bill Mears at Fox News, and Lydia Wheeler and Luis Sanchez at The Hill, who report that Justice Neil “Gorsuch sided with court’s four liberal justices in favor of the immigrant.”

At the Constitutional Law Prof Blog, Ruthann Robson notes that “Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court’s holding is narrow.” At ThinkProgress, Ian Millhiser argues that Gorsuch’s position in this case shows that, unlike Justice Samuel Alito, he “is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right,” and that “his separate opinion in Dimaya suggests that he sees this case as one step in a broader anti-regulatory journey.” At Vox, Dara Lind suggests that Gorsuch’s “concurrence shows that he’s coming at the case from a different angle than the liberals are — one that isn’t really about immigration or deportation at all.” At Slate, Mark Joseph Stern observes that Gorsuch’s “vote indicates that the justice has the same independent streak that led his role model, Justice Antonin Scalia, to occasionally push the law leftward.” At Reason’s Hit and Run blog, Damon Root notes that “[a] significant constitutional split has emerged between Supreme Court Justices Neil Gorsuch and Clarence Thomas over the meaning of the Due Process Clause.” At The Daily Beast, Jay Michaelson maintains that “the whole case is, in a sense, a testament to Justice Antonin Scalia’s legacy.” At Crime and Consequences, Kent Scheidegger argues that “[s]ometimes potentially vague statutes have crystal clear applications,” and suggests that “instead of striking down the statute, we just look at what this person actually did.”

In their second opinion yesterday, Wilson v. Sellers, the justices held 6-3 that a federal habeas court reviewing an unexplained state-court decision on the merits should “look through” that decision to the last reasoned state-court decision. Subscript’s graphic explainer for the opinion is here. At Crime and Consequences, Kent Scheidegger remarks that “[t]he defense side ‘won’ [this] case, but it may be a Pyrrhic victory,” and that “[h]ow the decision is applied in practice, as always, remains to be seen.”

In a brief per curiam decision, the justices also dismissed United States v. Microsoft Corp., which asked whether the company was required to comply with a warrant for emails stored overseas, as moot in light of the recent passage of a federal statute affecting the central issue in the case. Amy Howe covers the dismissal for this blog; her coverage first appeared at Howe on the Court. For The National Law Journal (subscription or registration required), Tony Mauro reports that “[b]oth sides in the digital privacy dispute had agreed and told the court the case was moot after Congress passed the CLOUD Act, which clarified the circumstances when U.S. law enforcement officers can access overseas emails.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent.]

Yesterday the justices heard argument in South Dakota v. Wayfair, in which they will reconsider a ruling that limits the ability of state governments to require out-of-state online retailers to collect tax on sales to state residents. For USA Today, Richard Wolf reports that “[t]he drive by cash-strapped state governments to collect more sales taxes from online retailers ran into skepticism,” as the justices “voiced concern about changing long-established rules of interstate commerce.” Jess Bravin reports for The Wall Street Journal that “[d]uring arguments, each side asserted that their position protected small businesses.” Additional coverage of the argument comes from Adam Liptak for The New York Times, Nina Totenberg at NPR, Mark Walsh at Education Week’s School Law Blog, Bill Mears at Fox News, Lyle Denniston at his eponymous blog, and Lawrence Hurley at Reuters, who reports that “some of the justices sa[id] Congress would be best suited to resolve the matter.” Coverage of the case comes from Chavie Lieber at Racked. In an op-ed for The Hill, Deborah White argues that “the continued existence of the court’s rule from decades past allows large, sophisticated online companies to shirk the tax collection responsibility that local stores face every day.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

At CNN, Ariane de Vogue and Maegan Vazquez report that “Justice Sonia Sotomayor broke her shoulder in a fall,” and that the justice “will wear a sling for several weeks and will undergo physical therapy as part of her recovery.” Additional coverage of Sotomayor’s mishap comes from Tony Mauro at The National Law Journal (subscription or registration required).

Briefly:

• For the Tribune News Service (via Governing), Jason Meisner reports that the justices’ refusal on Monday to hear the appeal of former Illinois governor Rod Blagojevich from his conviction on corruption charges, “mark[s] the end of a decade-long legal road and virtually guarantee[s] he will remain in prison until 2024 barring a presidential pardon or commutation.”
• At The Marshall Project, Andrew Cohen remarks that the cert petition in Williams v. Louisiana “presents to the justices what likely will be an irresistible constellation of issues,” including “prosecutorial misconduct,” “police interrogation of an intellectually disabled teenager,” and “the misapplication of the ‘Brady Rule’ of pretrial discoverymerged with Louisiana’s dubious reliance on malleable ‘summaries’ of testimony.’”
• In an op-ed at The Washington Post, Ria Tabacco Mar brings a personal perspective to Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, observing that “[l]aws against discrimination can’t protect us from violence, but they can protect us from going about our daily lives in fear of being turned away from stores, banks and hotels simply because of who we are.”
• At Take Care, Joshua Matz weighs in on Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban, arguing, among other things, that “[t]he extraordinary record in this case demonstrates that President Trump issued Travel Ban 3.0 on the basis of anti-Muslim animus.”
• At LAWnLingistics, Neal Goldfarb notes that Lucia v. Securities and Exchange Commission, which asks whether SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause, is “as far as I know the only case in any court where corpus [linguistics] analysis has been used in a brief in connection with an issue of constitutional interpretation.”
• At Dorf on Law, Eric Segall explains why “Justice Neil Gorsuch may surprise many people in an upcoming important case involving the alleged free speech rights of public-sector union employees,” Janus v. American Federation of State, County, and Municipal Employees, Council 31. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

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