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Today’s orders

Yesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they did release a new set of orders from yesterday’s conference. This morning’s order list sent four cases back to the state courts for them to take another look in light of yesterday’s decision in Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri’s exclusion of a church from a state program intended to provide funding for recycled playground surfaces violated the Constitution. The justices also added six new cases, for a total of five hours of argument, to their docket for the next term.

Two of today’s new grants came in cases in which the court had asked the federal government to weigh in and the acting solicitor general (on behalf of the federal government) had recommended that the court take up the case. Rubin v. Islamic Republic of Iran arises out of efforts to enforce a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem; the plaintiffs want to satisfy that judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. A federal law, the Foreign Sovereign Immunities Act, generally protects property in the United States that is owned by foreign governments from being seized, but the FISA carves out some limited exceptions – including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” Today the justices agreed to decide whether a provision of the FSIA creates a “freestanding” immunity exception (as the plaintiffs in this case argue) or whether the other requirements for seizing a foreign state’s property still apply.

And in Cyan Inc. v. Beaver County Employees Retirement Fund, the justices will consider whether a 1998 federal law, the Securities Litigation Uniform Standards Act, prohibits a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933. In this case, shareholders who bought stock in Cyan after its initial public offering but then experienced “weaker-than-expected” results filed a class action under the 1933 act, which creates causes of action for false statements made in connection with the public offering of stocks. In a somewhat unusual twist, the federal government agreed with a California appeals court that SLUSA does not strip state courts of jurisdiction over this lawsuit. But the government nonetheless urged the justices to grant review, describing the case as presenting a “difficult interpretive issue that has generated confusion in lower courts.”

The justices added two more cases to their docket in which the acting solicitor general had recommended that review be denied: Christie v. NCAA and National Thoroughbred Horsemen’s Association v. NCAA, which were consolidated for one hour of oral argument. In these cases, the lower courts ruled that a 2014 law passed by the New Jersey legislature allowing sports gambling at its casinos and race tracks was pre-empted by a federal law, the Professional and Amateur Sports Protection Act, that prohibits states from authorizing sports-gambling schemes. The Supreme Court will now weigh in on whether Congress can bar the states from authorizing sports gambling, or whether the PASPA instead violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states.

In PEM Entities v. Levin, the justices agreed to decide whether bankruptcy courts should apply a federal rule of decision, involving a multi-factor test, or state law when deciding whether to recharacterize a debt claim as a capital contribution in bankruptcy. And in Marinello v. United States, the justices will consider whether a conviction for trying to impede or obstruct the administration of the tax laws requires the government to show that the defendant knew of a pending IRS action when he acted.

Finally, the justices sent several cases involving the use of public funds in religious schools back to the state courts for them to reconsider in light of Trinity Lutheran. A trio of cases – Doyle v. Taxpayers for Public Education, Douglas County School District v. Taxpayers for Public Education and Colorado State Board of Education v. Taxpayers for Public Education – had asked the Supreme Court to review a decision by the Supreme Court of Colorado. The Colorado court had ruled that a public program to provide scholarships for use at private schools, including religious ones, violated the state constitution, which contains a provision that bars the state from spending public funds “in aid of any church or sectarian society, or for any sectarian purpose.” And in New Mexico Association of Nonpublic Schools v. Moses, the justices had been asked to weigh in on the New Mexico Supreme Court’s reliance on a similar state constitutional provision to uphold the exclusion of religious and private schools from a secular textbook-lending program.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Cyan. However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Today’s orders, SCOTUSblog (Jun. 27, 2017, 12:15 PM),