Relist Watch

By on Jun 3, 2020 at 11:15 am

John Elwood reviews Monday’s relists.

Even as the world grows more topsy-turvy by the minute, the Supreme Court’s relists this week are heavily a status quo affair. The gun cases are still there. The qualified immunity cases are still there. And the two ancient serial relists Andrus v. Texas and United States v. California inexplicably shuffle back for yet another curtain call this week, a trip they’ve been making almost weekly since November 2019 and January 2020, respectively.

If we needed any further proof that we’re living in a dystopian future, even the relists this week reflect the basic fact of life Beyond Thunderdome: Two cases enter, one case leaves. The one case leaving is Jarchow v. State Bar of Wisconsin, 19-831, which involved a First Amendment challenge to mandatory bar membership and dues. The court denied review, but Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented to say that the court’s recent First Amendment jurisprudence has undercut the legal basis for upholding mandatory bar membership. Continue reading »

One of the most significant changes to federal post-conviction habeas review that Congress adopted in 1996 in the Antiterrorism and Effective Death Penalty Act was the dramatic curtailment of second-or-successive habeas suits by which state and federal prisoners can challenge their confinement. But when a prisoner moves to amend a district court judgment denying his first federal habeas petition, is that still part of the first proceeding, or is that the second bite at the apple that Congress all but eliminated 24 years ago? In its 7-2 ruling on Monday in Banister v. Davis, the Supreme Court held that it is the former—and that a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure is part of the underlying proceeding for purposes of AEDPA. Although the ruling is not likely to stand as one of the term’s more significant decisions, the opposite result—for which Justices Clarence Thomas and Samuel Alito argued in dissent—could have had sweeping ramifications. Continue reading »


Wednesday round-up

By on Jun 3, 2020 at 6:59 am

This blog’s analysis of Monday’s decision in GE Energy Power Conversion v. Outokumpu Stainless, holding that, under an international convention governing the enforcement of foreign arbitral awards, a business that did not sign an arbitration agreement can still compel arbitration based on equitable estoppel, comes from Ronald Mann. At Courthouse News Service, Tim Ryan reports that “[t]he tangled arbitration dispute concerns several U.S. and foreign countries and the requirements of the so-called New York Convention, an international pact that requires the United States and 159 other countries to enforce arbitration agreements struck between companies in other member states.” Russ Bleemer and other discuss the decision in a video at CPR Speaks.

Continue reading »

Posted in Everything Else

This Thursday, June 4, at 1:30 p.m. EDT, the Committee for Justice will host a panel to discuss a number of high-profile cases still awaiting decision this term at the Supreme Court. Panelists John Malcolm of the Heritage Foundation, Amy Howe of Howe on the Court, and John Eastman of Chapman University Law will preview big decisions pending on abortion, DACA, religious school funding, LGBTQ discrimination, and more. Committee for Justice President Curt Levey will moderate.

Click here for more information and to register.


GE Energy Power Conversion France SAS v Outokumpu Stainless USA is a bit different from the typical Supreme Court arbitration case. Most of those cases involve a predispute arbitration agreement between a consumer and a business, in which a lower court has found some reason to allow the consumer to evade arbitration and the Supreme Court considers whether the Federal Arbitration Act justifies compelling arbitration. This case, by contrast, involves a dispute between two businesses over an international contract. The relevant body of law for that dispute is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. That treaty (to which the United States and about 160 other nations are signatories) obligates nations to enforce arbitration agreements between businesses of member states.

The specific question before the court was whether it is consistent with the obligations of the United States under the New York Convention for federal courts to apply traditional doctrines of equitable estoppel that permit the enforcement of an arbitration agreement by a business that did not sign the agreement. Continue reading »

Tuesday round-up

By on Jun 2, 2020 at 6:50 am

Yesterday the court stepped up its opinion output for the term considerably, releasing decisions in five cases. In Financial Oversight Board for Puerto Rico v. Aurelius Investment, LLC, the justices unanimously upheld the structure of Puerto Rico’s Financial Oversight and Management Board, ruling that the board’s members do not have to be appointed by the president and confirmed by the Senate because its duties are primarily local. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. For USA Today, Richard Wolf and Kristine Phillips report that the decision “enables Puerto Rico to continue its slow progress under a financial oversight and management board named in 2016 as part of a federal law but later challenged by investors.” John Kruzel reports at The Hill that “[a] ruling against the board would have created more fiscal turmoil for Puerto Rico as it continues to recover from a financial crisis that began in 2014 and proved to be the worst in its history.” For The Wall Street Journal (subscription required), Jess Bravin and Andrew Scurria report that “[l]urking behind the decision—and made explicit in a concurring opinion by Justice Sonia Sotomayor—was the broader question of Puerto Rico’s political status.” Additional coverage comes from Pamela King at Greenwire (subscription required) and Mark Walsh at Education Week’s School Law Blog. At Slate, Kyla Eastling, Danny Li and Neil Weare regret that the court declined the opportunity to overrule “the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that … has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.”

Continue reading »

Posted in Round-up

In a narrow, textualist decision, the Supreme Court today agreed with Nidal Khalid Nasrallah that a federal court of appeals has jurisdiction to review, albeit deferentially, the factual basis of the Board of Immigration Appeals’ denial of his claim that he qualifies for protection under the Convention Against Torture.

Nasrallah sought the United States’ protection under CAT, which prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. An immigration judge found that Nasrallah qualified for deferral of removal under CAT because he likely would be tortured if returned to his native country of Lebanon. Nasrallah remained eligible for this form of relief even though the immigration judge also found that he had committed an offense that qualified as a crime involving moral turpitude, rendering him otherwise removable. The Board of Immigration Appeals agreed with the immigration judge’s finding that Nasrallah had committed a crime involving moral turpitude, but disagreed that he qualified for deferral of removal under CAT. When Nasrallah appealed to the U.S. Court of Appeals for the 11th Circuit, that court determined that it lacked jurisdiction to hear his appeal because 8 U.S.C. § 1252(a)(2)(C) prohibits courts from reviewing questions of fact in “any final order of removal against” a noncitizen “removable by reason of having committed” certain criminal offenses.

Continue reading »


In a 5-4 decision, the Supreme Court held in Thole v. U.S. Bank that participants and beneficiaries in defined-benefit plans do not have the legal right, known as standing, to assert fiduciary breach claims, at least in the absence of catastrophic plan and sponsor failure. James Thole and Sherry Smith, retirees from U.S. Bank, alleged that plan fiduciaries breached their duties of loyalty and care, which caused the plan to lose more than $748 million. After the district court held that Thole and Smith had Article III standing to sue the fiduciaries, U.S. Bank made a substantial contribution to the plan, which increased the plan’s assets above the statutory minimum. The U.S. Court of Appeals for the 8th Circuit held that Thole and Smith lacked standing because they had received all the benefits to which they were entitled.

Continue reading »

This morning the Supreme Court issued orders from the justices’ private conference last Thursday. The justices did not add any new cases to their merits docket for the fall. They did not act on the group of cases challenging federal and state gun restrictions or the group of cases asking the justices to reconsider immunity for government officials (including police officers) accused of violating the constitutional rights of others.

The justices declined to review a challenge to the constitutionality of laws requiring lawyers who want to practice law in a state to join the state’s bar association and pay dues. The lawsuit was filed by two Wisconsin lawyers who argue that compelling them to do so violates the First Amendment. Continue reading »

In 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). The law created a seven-member board tasked with bringing financial stability back to the island. But when the board began proceedings in federal court to restructure Puerto Rico’s massive debt, a hedge fund that had invested in distressed Puerto Rico bonds and a local labor union went to court to challenge the method by which the board’s members had been appointed. They argued that under the Constitution’s appointments clause, the board members should have been nominated by the president and confirmed by the Senate. Because they were not, the challengers contended, the board’s actions could not be valid. Continue reading »

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