Editor's Note :

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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.

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

On Monday, the Supreme Court announced that it would not decide whether the state legislative maps drawn in 2011 by Wisconsin’s Republican-controlled legislature are the product of partisan gerrymandering – the practice of drawing district lines to favor one party, at the other party’s expense – and therefore unconstitutional. Instead, the justices sent the Wisconsin case back to the lower court, ruling that the challengers had not shown that they have a legal right to sue. Today the challengers in a partisan-gerrymandering case from North Carolina urged the court to move ahead despite the decision in the Wisconsin case, telling the justices that – unlike the Wisconsin challengers – they do have a legal right to sue.

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The Return of Relist Watch

By on Jun 20, 2018 at 8:00 pm

John Elwood provides useless blather to accompany Monday’s relists.

I apologize for slacking off last week, but I was in central Europe taking in the dulcet tones of the language of love while testing the effects of an all-meat diet on the body of a sedentary middle-aged lawyer. After about 10 days among people who see cuts of meat in the most unlikely places, packing myself full of schnitzel and something that I only belatedly discovered translates as “liver-cheese,” I can report that there are no adverse effects besides that “not so fresh” feeling and an inexplicable urge to wear Lederhosen.

I was relieved to return and learn that nothing happened while I was away. In an ordinary term, that would mean all that I have after today is just a mop-up Relist Watch on the last Monday of term, followed by an extended vacation. But this term is so funky, who knows what lies ahead?

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