Justice Neil Gorsuch has cast his first consequential vote on the Supreme Court, denying a request for a stay of execution filed by several death-row inmates, and participated – actively, by many accounts – in the court’s April argument session. The next major milestone for the newest justice will be his first majority opinion for the court.

If history is a guide, the moment, which is likely to occur in the next six weeks before the court recesses for the summer, will be more memorable as a rite of passage than as a landmark of the law.

What Gorsuch is writing will remain secret until the decision is announced. In all likelihood, however, Gorsuch was quickly assigned a majority opinion to write by Chief Justice John Roberts after taking part in 13 oral arguments between April 17 and April 26. Under the court’s practice, when the chief justice is in the majority, he makes the assignments for majority opinions in the cases; if the chief justice is in dissent, then the senior associate justice in the majority makes the assignment, most often Justice Anthony Kennedy on the current court.

Justice Neil Gorsuch (Art Lien)

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Briefly:

• In The New York Times, Michael Wines reports that what “seemed like an important victory for voting rights advocates on Monday when the Supreme Court declined to reconsider an appellate decision striking down North Carolina’s restrictive voting law” may have simply “postponed a showdown over what kind of voting rules are acceptable and how much influence partisanship should have over access to the ballot box.”
• Constitution Daily marks the May 17 anniversary of Brown v. Board of Education, decided on that date in 1954, “perhaps the most famous of all Supreme Court cases.”
• At the Workplace Prof Blog, Jeff Hirsch discusses Clark v. Virginia Department of State Police, a pending cert petition on which the court this week asked the acting solicitor general to weigh in that raises the issue of “whether Congress can use its war powers to abrogate state sovereign immunity”; Hirsch argues that if, as the court has held, “Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.”

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The petition of the day is:

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit correctly held – in conflict with the U.S. Courts of Appeals for the 5th, 7th, 8th, 9th, 10th and 11th Circuits – that a plaintiff seeking the remand of a class action, in which class membership is not limited to forum-state citizens, need not present any evidence that greater than two thirds of proposed class members are such citizens; and (2) whether the 6th Circuit correctly held – consistent with the 9th Circuit, but in conflict with the 5th, 10th and 11th Circuits – that a plaintiff seeking remand has adequately pled that a particular defendant’s conduct forms a “significant basis” of the class’s claims when it has made only undifferentiated and conclusory allegations regarding the conduct of multiple defendants.

In its conference of May 18, 2017, the court will consider petitions involving issues such as whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification; whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

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John Elwood reviews Monday’s relists.

With all the crazy things happening now, it seems a little frivolous, even irresponsible, to be obsessing about the minutiae of the Supreme Court’s docket. So let’s get started.

The ranks of the court’s relists are swelling. With the exception of the petition in the North Carolina voting case, North Carolina v. North Carolina State Conference of the NAACP, 16-833, which the court denied, and Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which has gone into the “hold” status (for Merit Management Group, LP v. FTI Consulting, Inc., 16-784) that we expected it to assume a week ago, all of last week’s relists are back for another spin. As a statistical matter, we’re getting to the point that it’s time to start expecting dissents from denial in some of these cases. That is especially true for the closely watched First Amendment/same-sex marriage case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, which has been relisted nine times. To my knowledge, the most-relisted case the court has ever granted is eight-time relist District of Columbia v. Wesby, 15-1485. Given the lack of a clear circuit split, we may also be getting a dissent from denial in the group of cases involving cell-site records, which are on their fourth relist. The tangle of retroactive tax cases, also on four relists, may likewise be approaching their sell-by date, but there are so dang many of them that it’s conceivable the court needs more time to sort through all the vehicles.

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Briefly:

• At The World and Everything In It, Mary Reichard offers highlights from the oral arguments in Davila v. Davis, McWilliams v. Dunn, Sandoz Inc. v. Amgen Inc., and Henson v. Santander Consumer USA, Inc. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Henson.]
• At The National Conference of State Legislatures Blog, Lisa Soronen notes that in District of Columbia v. Wesby, a Fourth Amendment case the court will consider next term, the State and Local Legal Center has filed an amicus brief arguing that “the D.C. Circuit erred by applying an inflexible rule that when officers are making arrest decisions, they must believe a suspect’s version of the story, even when circumstantial evidence indicates otherwise.”
• At Loyola Law School’s Summary Judgments blog, Adam Zimmerman looks at Kindred Nursing Centers Limited Partnership v. Clark, in which the court ruled on Monday that a power of attorney does not need to address arbitration specifically before an agent can bind her principal to an arbitration agreement, calling the decision “a clear sign that the Supreme Court’s will continue to stand by arbitration contracts that stop private parties from enforcing state law in state courts.”

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The petition of the day is:

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S.C. § 271(f).

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral argument yesterday in a challenge to the executive order signed by President Donald Trump on March 6. Colloquially known as the “travel ban,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. Yesterday’s oral argument came just one week after the full U.S. Court of Appeals for the 4th Circuit heard oral argument in a similar challenge; in both cases, federal trial courts had blocked the government from implementing the order. Last week’s argument suggested that there was a majority on the 4th Circuit to uphold the Maryland judge’s order putting the ban on hold; yesterday’s argument before the 9th Circuit panel could lead to a comparable result, although perhaps on a different theory than that relied on by the Hawaii trial court and also with a narrower scope.

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Yesterday, the court declined to review a court of appeals decision holding that North Carolina’s 2013 voting law, which included a voter ID requirement and other restrictions on voting, was passed with racially discriminatory intent. Amy Howe covers yesterday’s orders list for this blog. In The Washington Post, Robert Barnes reports that in a statement accompanying the order in the North Carolina voter ID case, “Chief Justice John G. Roberts Jr. noted the particular circumstances of the appeal, in which the Republican legislative leadership attempted to continue the appeal and the Democratic governor and attorney general sought to abandon it,” and invoked the court’s “frequent admonition that ‘[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case.’” Additional coverage comes from Pete Williams at NBC News, the Associated Press, Adam Liptak and Michael Wines in The New York Times, Greg Stohr at Bloomberg, Lyle Denniston at his eponymous blog, Lydia Wheeler at The Hill, Lawrence Hurley at Reuters, Ariane de Vogue and Daniella Diaz at CNN, Vann R. Newkirk II in The Atlantic, Gary Gately at Talk Media News, and Josh Gerstein at Politico. Commentary comes from Rick Hasen in the Election Law Blog, who notes that “[t]hese days at the Supreme Court, getting the Court not to hear a voting case is a significant victory,” Ian Millhiser at ThinkProgress, who cautions that “Monday’s victory for voting rights is likely to prove temporary,” Ari Berman in The Nation, Paul Waldman in The Washington Post, and German Lopez at Vox.

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A sharply divided Supreme Court yesterday held that debt collectors do not violate the Fair Debt Collection Practices Act when they file in a bankruptcy proceeding a claim for a debt that has become uncollectible because the statute of limitations has expired. Writing for a 5-3 majority (the case was argued before Justice Neil Gorsuch arrived), Justice Stephen Breyer disposed of Midland Funding, LLC, v. Johnson in a short and antiseptic opinion. Explaining that the statute punishes conduct by debt collectors that is “false,” “deceptive,” “misleading,” “unconscionable” or “unfair,” the court’s opinion first explained why filing stale claims is not false, deceptive or misleading, and then why it is not unconscionable or unfair.

On the first point, the court essentially concluded that it is not misleading to file a time-barred claim in a bankruptcy proceeding because that obligation remains a “claim” for purposes of bankruptcy law. The opinion noted the court’s repeated statements that “Congress intended [when it adopted the Bankruptcy Code] to adopt the broadest available definition of ‘claim.’” It also emphasized that the statutory text directly recognizes the possibility that an obligation would be a “claim” even if it were unenforceable; specifically, the statute “says that, if a ‘claim’ is ‘unenforceable,’ it will be disallowed. It does not say that an ‘unenforceable’ claim is not a ‘claim.’”

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