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On Monday the Supreme Court will release orders from the June 21 conference at 9:30 a.m. and opinions at 10 a.m. We will begin live-blogging at 9 a.m. at this link, where readers can sign up for an email reminder when the live blog begins.
We'll be joined on the live blog by John Elwood of Relist Watch and First Mondays.

Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. At a time when immigrants are frequently dehumanized, it is worth noting that the majority opinion, signed by eight members of the court, not only expressly affirms Pereira’s contributions to his community, but also eschews entirely the use of the statutory term “alien” in favor of “noncitizen,” a term that the court defines in footnote 1.

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We live-blogged as the Supreme Court released opinions in four argued cases. The justices announced decisions in Carpenter v. United States, Currier v. Virginia, Ortiz v. United States and WesternGeco LLC v. ION Geophysical Corp.

Guest bloggers Dan Epps and Ian Samuel of First Mondays joined us from 9 to 9:45 a.m.

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

Posted in Live

Gillian Metzger is the Stanley H. Fuld Professor of Law at Columbia Law School. She was part of an amicus brief of constitutional and administrative law scholars in support of the SEC in Lucia v. Securities and Exchange Commission.

As the gangbuster 2017 term draws to a close, we now have another year’s worth of cases to study for signals about where the Roberts court is headed on administrative law.  Recent terms have evidenced growing attacks on the administrative state and plaintive complaints about uncontrolled bureaucrats from the court’s conservative wing.  Yet to date these attacks have been marked by strong rhetorical bark but limited practical bite.  The court has opted for incremental doctrinal pullback at most, with more radical constitutional constraints on administrative governance relegated to concurrences and dissents.

That trend continued this term, with the court demonstrating admirable judicial agility at ducking or minimally deciding constitutional challenges to the administrative state.  This is true of both Oil States Energy Services. v. Greene’s Energy Group and Lucia v. SEC, the two head-on constitutional challenges to administrative adjudication.  The court also largely avoided debates over the status of Chevron and Auer deference.  Yet the 2017 term decisions also contain seeds of more dramatic constitutional limits on administrative governance, were the Roberts court inclined to move in that direction in the future.

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Alan Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington Law School.  He was co-counsel for 29 law professors who filed an amicus brief in Lucia v. Securities and Exchange Commission in support of neither side.

Yesterday’s decision in Lucia v. SEC answered what, in the long run, is a small question, but opened up for future litigation two much larger questions.

In her majority opinion, Justice Elena Kagan held that administrative law judges are officers of the United States, not employees, and so they have to be appointed under the Constitution’s appointments clause.  In this case, because everyone agreed that the ALJs are inferior officers, they could be appointed by the full SEC for which they worked, but not by staff, which was how they were appointed.  As Kagan and the five justices who joined her concluded, ALJs are no different from the special trial judges whom the court in 1991 held to be officers in Freytag v. Commissioner.

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Friday round-up

By on Jun 22, 2018 at 6:31 am

Yesterday the Supreme Court released four decisions, including one in a high-profile case with significant implications for ecommerce. In South Dakota v. Wayfair, the justices voted 5-4 to overrule two prior cases that prohibited states from requiring out-of-state retailers who don’t have a store or warehouse in the state to collect tax on sales to state residents. Mark Walsh has this blog’s opinion analysis. Subscript has a graphic explainer for the decision. At Good Judgment, Ryan Adler notes that the outcome “was not a win” for forecasters. At NPR, Nina Totenberg reports that the ruling “reversed decades-old decisions that protected out-of-state vendors from sales tax obligations unless the vendor had a physical presence in the state” and that “date back to a time when mail-order sales were relatively small and online sales were all but nonexistent.” Additional coverage comes from Brent Kendall, Jess Bravin and Laura Stevens for The Wall Street Journal, Bill Mears at Fox News, Richard Wolf at USA Today, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Greg Stohr at Bloomberg, Pete Williams at NBC News, Lydia Wheeler and Naomi Jagoda at The Hill, Mark Walsh at Education Week’s School Law Blog, Bernie Becker and Josh Gerstein at Politico, Jon Chesto for the Boston Globe, Lawrence Hurley at Reuters, Tony Mauro and Marcia Coyle at The National Law Journal (subscription or registration required), and David Savage for the Los Angeles Times, who reports that “[t]he decision will inject billions of dollars into state coffers, but also increase prices for many online shoppers.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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Posted in Round-up

Petition of the day

By on Jun 21, 2018 at 8:00 pm

The petition of the day is:


Issues: (1) Whether statutory silence, when a statute neither authorizes nor forbids an agency action, triggers Chevron deference; and (2) whether, if statutory silences triggers Chevron deference, an agency’s interpretation is reasonable when the interpretation is not based on any statutory text but instead on the absence of relevant text.

In its conference of June 21, 2018, the court is considering petitions involving issues such as whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways; whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless”; and whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. Continue reading »


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It’s the first day of summer, and here at Viewfromthecourtroom.com, we are having a season-ending closeout sale, today featuring items from our April catalogue.

It is another extra opinion day as the court winds down. In the sparsely populated bar section, Jordan Lorence of Alliance Defending Freedom takes a seat, likely hoping for a decision in National Institute of Family Life Advocates v. Becerra. Arthur Spitzer, the head of the District of Columbia office of the American Civil Liberties Union, is shown to a seat near Lorence, and the two great each other amicably, even if their organizations are often at odds.

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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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