Editor's Note :

Editor's Note :

On Monday the Supreme Court will release orders at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will begin live-blogging at 9:25 a.m.

This week at the court

By on May 20, 2018 at 12:00 pm

On Monday the Supreme Court will release orders from the May 17 conference. There is a possibility of opinions.

The justices will meet on Thursday for their May 21 conference; our list of “petitions to watch” will be available soon.

 
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Petition of the day

By on May 18, 2018 at 6:00 pm

The petition of the day is:

17-1471
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issue: Whether, under the Class Action Fairness Act – which permits “any defendant” in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements – an original defendant to a class-action claim that was originally asserted as a counterclaim against a co-defendant can remove the class action to federal court if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act.

In its conference of May 17, 2018, the court considered petitions involving issues such as whether the Sixth Amendment right to confrontation is violated when the trial court prevents a defendant from cross-examining a government witness regarding the mandatory life sentence he would have faced absent cooperation in order to prevent the jury from inferring the defendant’s likely life sentence; whether the death penalty, in and of itself, violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition; and whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11. Continue reading »

 
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Here’s a quick quiz: When does 6 plus 1 not necessarily add up to 7?

Counting vote totals can sometimes be a challenge at the Supreme Court, especially when the justices write separate opinions that take different forms and reach different conclusions.

One example came earlier this week in the sports-betting ruling, Murphy v. National Collegiate Athletic Association. In a decision written by Justice Samuel Alito, the Supreme Court invalidated a federal law, the Professional and Amateur Sports Protection Act, which prohibited states from allowing sports gambling at casinos, racetracks and other facilities within a state. Alito’s opinion was joined unambiguously and in full by five others: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch. Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. That would make the vote count 6-2.

But the remaining justice, Stephen Breyer, joined most of Alito’s majority opinion but also part of Ginsburg’s dissent. So was the case decided by a 6-3 vote or a 7-2 vote?

Justice Alito delivers opinion in Murphy v. NCAA (Art Lien)

Continue reading »

Relist Watch

By on May 18, 2018 at 11:02 am

John Elwood (finally) reviews Monday’s relists.

We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following ordinary procedures. That date this year is May 22. And this week’s relists illustrate a fundamental truth: It’s nice to have Washington on your side. The petitioners in three of this week’s five new relists have the support of the solicitor general, which vastly increases their odds of a grant.

The petitioner in Virginia Uranium Inc. v. Warren, 16-1275, is a business with a name that inspires puzzlement, like “Arizona Oysters, Ltd.,” “Beachfront Iowa, LLC,” or “Greater San Diego Penguin Ranch, P.C.” Through some twist of fate, the Old Dominion is home to America’s largest domestic uranium deposits. Federal law doesn’t regulate the mining of uranium, but it does regulate uranium processing and the handling of the tailings left over afterwards. By agreement, federal regulators permit Virginia to regulate some processing activities, but the agreement expressly excludes regulation of uranium tailings. The commonwealth has long prohibited uranium mining, allegedly motivated by concerns about the radiological safety of uranium milling and tailings-management activities. The owners of the deposits did not seek to exploit the deposits for years, but when the price of uranium spiked during the mid-2000s, they sued to challenge the commonwealth’s mining moratorium.  The U.S. Court of Appeals for the 4th Circuit held that because federal law did not address mining, the Virginia moratorium was not pre-empted. The owners sought Supreme Court review and after the court’s September 2017 “long conference,” the court “invited” the solicitor general to file a brief expressing the views of the United States.  That’s an “invitation” in the same sense as when your father “invites” you to mow the lawn when you’re a kid, or when your spooky cellmate with the creepy thousand-yard stare and facial tattoos “invites” you to take the upper bunk.  In April 2018, the solicitor general finally responded to the invitation by saying that review is warranted because the 4th Circuit’s view of Atomic Energy Act pre-emption is “cramped,” conflicts with both Supreme Court precedent and decisions of other federal courts of appeals, and is “important and likely to recur in other nuclear-safety contexts.”  The court has tended to follow the grant recommendations of the solicitor general in recent years, so this is a case to watch.

Continue reading »

 
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Friday round-up

By on May 18, 2018 at 7:00 am

Briefly:

  • At CNN, Joan Biskupic lists five reasons why Justice Anthony Kennedy may not retire this term, “beginning with the fact that he has always lived for this.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “review the RBG documentary and chat with SCOTUSblog’s Amy Howe”; they also “break down recent decisions on sports betting, shackling, and more.”
  • At his eponymous blog, Michael Dorf suggests that Justice Clarence Thomas “deserves some credit for calling attention to the Court’s failure to fully justify or consistently approach severability issues” in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting, but he maintains that Thomas “has not thought through his own commitments or even his own votes in recent severability cases.”
  • In two posts at the Yale Journal on Regulation’s Notice and Comment blog, here and here, Bernard Bell takes a close look at Mount Lemmon Fire District v. Guido, in which the justices will decide next term whether the 20-employee minimum in the Age Discrimination in Employment Act applies to state and local governments, concluding “that application of such numerosity requirements [to] governmental entities is not particularly appropriate.”

Continue reading »

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Petition of the day

By on May 17, 2018 at 7:30 pm

The petition of the day is:

17-1459

Issues: (1) Whether federal or state law governs the respect that must be accorded to the judgment of a foreign court in diversity cases; and (2) whether a district court’s decision on the merits of a claim becomes moot, and must be vacated, if the court of appeals determines that the plaintiff has not proven entitlement to the only remaining relief sought in connection with that claim.

Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

Continue reading »

 
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Thursday round-up

By on May 17, 2018 at 7:26 am

At his eponymous blog, Michael Dorf explores the judicial politics at play in Monday’s decision in Murphy v. National Collegiate Athletic Association, in which the justices struck down the federal law that bars states from legalizing sports betting, that might “explain[] the liberal wing of the Court’s acceptance of the anti-commandeering doctrine.” At PrawfsBlawg, Rick Hill suggests that the case “is an elegant illustration of how disagreements about baselines can make a hash of distinctions between ‘negative’ prohibitions and ‘affirmative’ mandates.” In an op-ed for The Daily Signal, Jonathan Wood asserts that “[r]egardless of your personal views of sports betting, you should celebrate this decision as a win for federalism, a core guarantee of democratic accountability.”

At The Daily Caller, Kevin Daley reports that “[t]wo surrogate mothers are petitioning the U.S. Supreme Court to give greater credence to the constitutional rights of surrogates in custody disputes,” noting that “[a]t this stage of their cases, the women are not litigating the merits of their claims,” but “are fighting for the right to argue that their surrogacy contracts are unlawful.” Additional coverage comes from Ariana Eunjung Cha for The Washington Post. Continue reading »

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Petition of the day

By on May 16, 2018 at 8:00 pm

The petition of the day is:

17-1449

Issues: (1) Whether the Supreme Court of Arizona erred in holding that the introduction of a defendant’s past violent conduct in the penalty phase of a capital trial automatically requires that jurors be informed about the defendant’s parole ineligibility pursuant to the due process clause as interpreted in Simmons v. South Carolina and its progeny; and (2) whether Simmons applies in a sentencing proceeding for capital murder committed by a defendant already in prison, a context demonstrating that incarceration is not a sufficient means of preventing future violence by that defendant.

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