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The Supreme Court will release orders from the February 15 conference on Tuesday, February 19, at 9:30 a.m. There is a possibility of opinions on Wednesday, February 20, at 10:00 a.m.

This week at the court

By on Feb 17, 2019 at 12:00 pm

The Supreme Court will release orders from the February 15 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m.

On Tuesday, the justices hear oral argument in Return Mail Inc. v. United States Postal Service.

On Wednesday, the justices hear oral argument in Mission Product Holdings Inc. v. Tempnology, LLC.

On Friday, the justices will meet for their February 22 conference.


The Supreme Court’s 2018-2019 term will end with a bang. In a brief order issued after the justices’ private conference, the court announced this afternoon that it will review a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. The court will take up the case and hear oral argument in the dispute – without following the normal procedure and waiting for a federal appeals court to weigh in first – in late April.

The dispute centers on the March 2018 announcement by Wilbur Ross, the Secretary of Commerce, that the 2020 census would include a question about citizenship. The Trump administration indicated that data collected from the question would help the U.S. Department of Justice to better enforce voting rights, but states and civil rights groups (among others) opposed the decision, countering that the question would make households with undocumented or Hispanic residents less likely to respond and would therefore lead to an inaccurate count.

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Friday round-up

By on Feb 15, 2019 at 6:47 am


  • For the Los Angeles Times, David Savage reports that “[t]he Supreme Court meets behind closed doors [today] to weigh a question that could shape the political power of California for the decade ahead[:] At issue is the Trump administration’s plan to ask all households for the first time since 1950 whether occupants are U.S. citizens.”
  • Alex Swoyer reports for The Washington Times that “Justice Sonia Sotomayor said Thursday the high court is a prime example of how people who disagree can actually get along with one another and even have some fun together, saying she has particular respect for her colleague Justice Neil M. Gorsuch.”
  • At The New Yorker, Jeffrey Toobin writes that “there are currently two retirement dramas under way at the Court—one semi-public and the other semi-private—and they both have the potential to reshape the meaning of the Constitution for decades.”
  • At The National Law Review, Ellen Shapiro and others discuss a new cert petition “seeking clarification of the duty to update under the federal securities laws.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petitions of the week

By on Feb 14, 2019 at 10:05 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the availability of tribal sovereign immunity in inter partes review, a probate-estate beneficiary’s ability to establish a direct injury for a RICO claim in certain circumstances, and the state subsidies pre-empted by the Federal Power Act.

The petitions of the week are:


Issues: (1) Whether the beneficiary of a probate estate can establish the direct injury necessary to bring a civil RICO claim when the alleged RICO violation harms the estate as a whole and any impact on beneficiaries of the estate is indirect and derivative; and (2) whether outside parties who are not members of the alleged RICO enterprise can nevertheless be liable under 18 U.S.C. 1962(c) when they are alleged only to have “assisted” or acted as “necessary tools” to a single RICO defendant in his own operation or management of the RICO enterprise.


Issue: Whether inter partes review before the Patent Trial and Appeal Board is the type of proceeding in which tribal sovereign immunity may be asserted.


Issue: Whether the Federal Power Act pre-empts only state subsidies that explicitly require a wholesale generator to sell its output in auctions approved by the Federal Energy Regulatory Commission, or whether the Federal Power Act also pre-empts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether the Federal Power Act pre-empts only state subsidies that explicitly require a wholesale generator to sell its output in auctions approved by the Federal Energy Regulatory Commission, or whether the Federal Power Act also pre-empts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.


Thursday round-up

By on Feb 14, 2019 at 6:57 am

In an op-ed for The New York Times, Linda Greenhouse writes that Chief Justice John Roberts’ vote last week in June Medical Services v. Gee to temporarily block a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals was not surprising, because “circumstances compelled the chief justice to stand up to a stunning act of judicial defiance” by the U.S. Court of Appeals for the 5th Circuit. At Take Care, Brianne Gorod and Rebecca Damante argue that “what Roberts does next will tell us a lot—about him and the trajectory of the Court he leads.” At The Interdependent Third Branch, Lawrence Friedman maintains that “[m]ore interesting than the Chief voting to impose the stay was Justice Brett Kavanaugh’s dissent—the only separate opinion,” which suggests that “the Chief Justice has another colleague who appreciates that the Court’s ability to perform its constitutionally assigned role is inextricably connected to the esteem in which it is held.”

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The second of the two cases set for oral argument next week is a bankruptcy matter, Mission Product Holdings Inc. v. Tempnology, LLC. Although the case presents a variety of twists and complications, the central question is so simple that it is surprising it has not been settled for decades: When a debtor rejects a contract in bankruptcy, does that simply mean that the debtor can stop performing (and become liable for breaching the contract) or does it also mean that the contract is rescinded (retracting any rights it might have granted the other party)?

The question before the justices comes from Section 365 of the Bankruptcy Code, Subsection(a) of which gives any bankrupt firm the power to “assume or reject any executory contract of the debtor.” Subsection 365(g) offers some guidance as to the effect of rejection, explaining that it “constitutes a breach” of the affected contract, which ordinarily would leave the debtor liable for damages for breach of contract. The question, though, is whether rejection goes further and also rescinds the entire arrangement.

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Wednesday round-up

By on Feb 13, 2019 at 6:37 am


  • At CNN, Ariane de Vogue and Ted Barrett report that “Republican Sen. Susan Collins, a supporter of abortion rights who cast a critical vote to confirm Justice Brett Kavanaugh, said in an interview with CNN that despite his vote in a recent abortion access case, [June Medical Services v. Gee,] she did not believe Kavanaugh would ultimately vote to overturn Roe v. Wade.”
  • At Constitution Daily, Lyle Denniston reports that “the Supreme Court on Monday set the stage for acting soon – probably on Friday – on the constitutional controversy over asking everyone living in America about their citizenship, as part of the 2020 census,” by “plac[ing] the census dispute on the agenda for the Justices’ private conference on Friday morning.”
  • At Empirical SCOTUS, Adam Feldman tracks the involvement of “friends of the court” at the certiorari stage “in cases with direct financial implications that the justices later heard on the merits between the 2008 and 2018 Court terms.”
  • NFIB weighs in on Kisor v. Wilkie, in which the justices will reconsider precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations, arguing that those precedents “create[] a perverse incentive for federal agencies to use ambiguous language when promulgating regulations.”

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Not surprisingly, most cases before the Supreme Court involve high stakes. The justices can assure this by taking a small and selective caseload each term. With so many potential cases petitioned to the court on such a wide range of issues, the court really has the pick of the litter in terms of possible cases to hear. The types of issues involved in cases also range greatly, from individual or group rights to the limitations on actions by federal and state actors.

Many of these cases also have direct or indirect financial implications. How much these cases will affect the economy is often not entirely clear at the outset, but the potential areas of impact are often demarcated through cases’ progress in the lower courts. A certain set of groups is highly active within the band of cases with direct financial implications. These groups have an interest in seeing these cases proceed to the Supreme Court and in the eventual case outcomes. This post identifies these groups and the extent of their involvement in the initial stages of Supreme Court litigation. Specifically, it tracks their involvement as amici for petitions in cases with direct financial implications that the justices later heard on the merits between the 2008 and 2018 terms.

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(Kevin Payravi, Wikimedia Commons)

The justices have a light calendar for the first week of the February session, with only two cases set for argument. The first of the pair is Return Mail Inc. v. U.S. Postal Service, the lone Tuesday argument. Return Mail is a simple statutory case asking the justices to resolve another of the seemingly endless flow of drafting problems arising out of Congress’ 2011 patent-reform bill, the Leahy-Smith America Invents Act (usually called the AIA).

The question in this case is whether the United States (specifically, the U.S. Postal Service) is a “person” for purposes of a series of provisions in the AIA stating that “a person who is not the owner of a patent” may petition for post-grant review of an issued patent. The Patent and Trademark Office issued a patent to petitioner Return Mail for an invention involving the use of bar codes in facilitating the processing of undeliverable mail. After Return Mail sued the Postal Service, claiming that Postal Service’s practices infringed the Return Mail patent, the Postal Service filed a petition under the AIA’s procedures for review of business-method patents, asking the PTO to invalidate the patent. In due course, the PTO held the invention unpatentable and invalidated the patent. After the U.S. Court of Appeals for the Federal Circuit affirmed that decision, the Supreme Court agreed to consider whether the PTO properly permitted the government to initiate that review process instead of litigating the validity of the patent in the context of Return Mail’s enforcement suit (which would have proceeded in the U.S. Court of Federal Claims, the prescribed venue for patent infringement suits against the federal government).

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Tuesday round-up

By on Feb 12, 2019 at 7:15 am

In an op-ed for The New York Times, Alan Cross weighs in on the court’s 5-4 decision last week to allow Alabama to execute a Muslim inmate who had challenged Alabama’s refusal to permit an imam to be by his side when he died, noting that “[w]hat has gone largely unnoticed, but is in fact much more disturbing, is what Alabama did while the Ray case made its way through the courts: To further protect itself from Mr. Ray’s challenge, the state indicated it would end the practice of having a chaplain or spiritual adviser in the death chamber altogether.” At The Economist’s Democracy in America blog, Steven Mazie writes that “[a]side from acknowledging the religious discrimination of their previous policy, this move matched similarly fraught strategies of addressing racial discrimination claims during the civil-rights era.” At The Atlantic, Wajahat Ali wonders “[h]ow … these five justices [would] have responded if all the facts were the same but Ray were a Christian and the imam were a priest,” and he suggests that “[i]f the free-exercise clause allows you not to bake and sell a cake, maybe it should also allow you to have an imam at your own execution.”

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