Editor's Note :

Editor's Note :

We are hosting an online symposium on Epic Systems v. Lewis, in which the court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. Contributions are available at this link.

Justices grant four new cases

By on May 21, 2018 at 11:55 am

This morning the Supreme Court added four new cases to its docket for next term, on topics ranging from federal pre-emption to the rules governing attorney’s fees for Social Security claimants. The justices once again did not act on a petition by the federal government to nullify a ruling that cleared the way for an undocumented pregnant teenager to receive an abortion.

In Virginia Uranium v. Warren, the justices agreed to weigh in on questions of pre-emption – that is, when federal law trumps state law – and the Atomic Energy Act. The petition for review was filed by Virginia Uranium, a company that owns and wants to mine the country’s largest-known deposit of uranium ore, which is used for both nuclear power plants and nuclear weapons. The company was barred from doing so by a Virginia law prohibiting uranium mining. That ban, the company contends, stems from concerns about radiation from both the process used to transform the mined product into a form in which it can be used (known as “milling”) and the waste that results from that processing, known as “tailings.” And those concerns, the company argues, conflict with the Atomic Energy Act, which gives the federal Nuclear Regulatory Commission exclusive power to regulate uranium milling and tailings-management activities.

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[NOTE: This post was updated with additional analysis at 3:30 p.m.]

In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have the right to work together for “mutual aid and protection.” Today the Supreme Court ruled, by a vote of 5-4, that employers can include a clause in their employment contracts that requires employees to arbitrate their disputes individually, and to waive the right to resolve those disputes through joint legal proceedings instead. Although it likely won’t garner the attention that some of this term’s other cases will receive, the decision was a huge victory for employers, because it could significantly reduce the number of claims against them.

Today’s opinion resolved three cases that were argued together on the first day of the term: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA. Each arose when an employee who had signed an employment agreement that contained an arbitration provision filed a lawsuit in federal court, seeking to bring both individual and collective claims. The employers argued that, under the terms of the arbitration agreements, the employees needed to go to individual arbitrations, and today the Supreme Court agreed.

Justice Gorsuch with opinion in Epic Systems v. Lewis (Art Lien)

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We live-blogged this morning as the Supreme Court released orders and opinions.

The justices granted four cases for next term: Virginia Uranium Inc. v. WarrenCulbertson v. BerryhillJam v. International Finance Corp. and Royal v. Murphy.

The justices also released opinions in two argued cases: Epic Systems Corp. v. Lewis and Upper Skagit Indian Tribe v. Lundgren.

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

Posted in Live

Supreme Court opinions have been coming down in a slow trickle, but it’s enough to quench our thirst. This week, we recap five cases the justices have decided, from sports betting to privacy expectations in rental cars, from shackling criminal defendants to determining effective assistance of counsel. Plus, we return briefly to the eight-member court as Justice Neil Gorsuch sits out a case about wiretapping.

We’ll start it all off looking at some cases that have been granted for next term, and we’ll finish by trying to game out who is writing which remaining opinions.

Monday round-up

By on May 21, 2018 at 7:03 am


  • Constitution Daily provides an “update on 12 significant decisions that will be handed down from the Court into late June.”
  • At Bloomberg Law’s Cases and Controversies podcast, Jordan Rubin and Kimberly Robinson break down the funniest moments from the Supreme Court’s 2017 term.
  • At PrawfsBlawg, Richard Re remarks that although “[t]he Justices often intone that theirs is ‘a court of review, not of first view,’” “last Monday’s decisions illustrate the complexities underlying that maxim,” suggesting that “the ‘first view’ principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area.”
  • At Take Care, Leah Litman looks at one aspect of “the sentencing fallout from” Sessions v. Dimaya, in which the court ruled that the catchall section of the immigration law’s criminal-removal provision is unconstitutionally vague, and urges the Sentencing Commission to “reconsider its reliance on language that the Supreme Court has determined is hopelessly unclear.”

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Posted in Round-up

This week at the court

By on May 20, 2018 at 12:00 pm

On Monday the Supreme Court released orders from the May 17 conference. The justices granted Virginia Uranium Inc. v. Warren, Culbertson v. Berryhill, Jam v. International Finance Corp. and Royal v. Murphy. They also called for the views of the solicitor general in City of Cibolo, Texas v. Green Valley Special Utility District.

On Monday the Supreme Court released its opinions in Epic Systems Corp. v. Lewis and Upper Skagit Indian Tribe v. Lundgren.

The justices will meet on Thursday for their May 24 conference; our list of “petitions to watch” will be available soon.


Petition of the day

By on May 18, 2018 at 6:00 pm

The petition of the day is:

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 »


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)

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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.

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