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Tuesday round-up

Yesterday the court granted certiorari in Carpenter v. United States, which asks whether the government must obtain a warrant for historical records showing where a cell phone connects with towers. In North Carolina v. Covington, the court also summarily affirmed a district-court order invalidating North Carolina’s state legislative map as an unconstitutional racial gerrymander. The justices issued a per curiam opinion in a separate but related case, also captioned North Carolina v. Covington, vacating a district-court remedial order that had required special elections and directing the district court to weigh the competing equities in the case. Amy Howe covers yesterday’s orders list for this blog. Josh Gerstein reports on Carpenter for Politico, noting that “[l]ower courts have generally ruled that a warrant is not required for such data because it is voluntarily shared by users with third parties, namely the telephone companies,” but “[c]ritics say the precedents behind those decisions are outdated in light of the realities of life in the digital age.” Additional coverage of Carpenter comes from Lyle Denniston at his eponymous blog, Adam Liptak in The New York Times, Ariane de Vogue at CNN, Lawrence Hurley at Reuters, Robert Barnes in The Washington Post, Jurist’s Paper Chase Blog, Richard Wolf in USA Today, and David Savage at the Los Angeles Times.

In The New York Times, Adam Liptak reports on the summary affirmance in Covington, noting that “the question in the case was similar to one the justices addressed last month, in which “the court struck down two of the state’s congressional districts as racial gerrymanders.” At Reuters, Lawrence Hurley reports that in “throwing out the decision requiring special elections,” the justices “said the lower court gave only a ‘cursory’ analysis of whether such elections were ‘a proper remedy for a racial gerrymander’ when it ordered them last November.” Additional coverage comes from Jurist’s Paper Chase blog. At the Election Law Blog, Rick Hasen observes that “the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases.” At Think Progress, Ian Millhiser argues that the fact that “North Carolina still got to run several elections under [its] maps” even though the court agreed that the “maps are illegal” is “a pretty substantial incentive for lawmakers to draw more gerrymandered maps in the future.”

The court also issued four unanimous opinions yesterday. In Advocate Health Care Network v. Stapleton, the court held that a pension plan maintained by a church-affiliated group qualifies for ERISA’s church plan exemption no matter who established the plan. Ronald Mann has this blog’s opinion analysis. For Education Week, Mark Walsh reports that the ruling “eased the fears of religious schools across the country on a closely watched benefits issue by ruling that the pension plans of church-affiliated organizations—hospitals, soup kitchens, and homeless shelters in addition to schools—are exempt under the main federal law governing retirement benefits.” At Reuters, Andrew Chung reports that the “ruling is the latest in which the justices endorsed the idea that certain businesses deserve wider latitude because of religious considerations.” At his eponymous blog, Lyle Denniston reports that the decision means that church-affiliated organizations “will not have to obey the Affordable Health Care Act’s mandate to provide free contraceptives for their women employees – if that mandate survives an expected move to rewrite it by the new Trump Administration.” Jurist’s Paper Chase blog also covers the decision. At Americans United’s Wall of Separation blog, Bradley Girard argues that “hospitals shouldn’t be allowed to drain their employee’s pension funds simply because of a religious affiliation.” At his eponymous blog, Ross Runkel observes that the opinion “points out that three government agencies … have for decades interpreted the statute as exempting plans like the ones involved in this case,” but “the Court does not breathe a single word as to whether those agencies’ interpretations are entitled to one whit of deference.”

In Town of Chester v. Laroe Estates, Inc., the justices ruled that an as-of-right intervenor must have standing if it is seeking relief not requested by a plaintiff in the case. Howard Wasserman analyzes the opinion for this blog. At PrawfsBlawg, Wasserman maintains that the problem with “what Andrew-Aaron Bruhl … calls the one good plaintiff rule” “is that all relief is plaintiff-specific–a remedy for A is different than a remedy for B, even if they both want the same thing,” so “either the Court’s own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.”

In Kokesh v. Securities and Exchange Commission, the court held that because SEC disgorgement operates as a penalty, the five-year statute of limitations applies to a claim for disgorgement in an SEC enforcement action. In The Washington Post, Robert Barnes reports that the question of “whether disgorgements were a form of a penalty, which is subject to the statute of limitations, or a remedy for unjust enrichment that simply restores the offender to the situation he would have been in if he had not acted illegally, as the government claimed,” “appeared not to be a close call to the justices.” In The Wall Street Journal, Dave Michaels and Brent Kendall report that the “decision adds to the setbacks dealt to SEC enforcers by the high court.” Additional coverage comes from Greg Stohr at Bloomberg, Tony Mauro in Supreme Court Brief (subscription required), and Sarah Lynch and Lawrence Hurley at Reuters, who note that the “decision marked the second time since 2013 that the Supreme Court has reined in the SEC’s enforcement powers” and that the “ruling represented a major victory for Wall Street firms.”

Finally, in Honeycutt v. United States, the justices ruled that co-conspirators who do not benefit personally from illegal proceeds cannot be ordered to forfeit property. Douglas Berman discusses the decision at Sentencing Law and Policy, noting that the “opinion’s first footnote indicates that a majority of circuit courts embraced a broader view of the federal forfeiture statute,” which suggests “that SCOTUS these days is generally more pro-defendant on a wide range of sentencing issues than most lower federal courts.” At The Daily Caller, Kevin Dailey observes that “[t]hough the ruling only restricts one dimension of the modern forfeiture regime, the justices[‘] writings during this term suggest a growing hostility to current forfeiture practices.”

Last week, the Justice Department asked the court to review an appeals court decision invalidating a portion of President Donald Trump’s executive order limiting travel from six majority-Muslim countries and to lift two injunctions blocking enforcement of the order. In The Washington Post, Matt Zapotosky reports that several tweets yesterday by President Donald Trump in which the president “derided the revised travel ban as a ‘watered down’ version of the first and criticized his own Justice Department’s handling of the case” “could significantly damage his administration’s effort to restore the ban.” In USA Today, Richard Wolf reports that “[e]ven George Conway, the husband of White House counselor Kellyanne Conway, who had been considered for two high-ranking Justice Department posts, tweeted that Trump’s comments ‘certainly won’t help’ to get five votes from the Supreme Court — ‘which is what actually matters.’” Additional coverage comes from Adam Liptak and Peter Baker in The New York Times, who call the president “a challenging client”; David Savage at The Los Angeles Times, who reports that “at least some legal experts wondered if Trump was already anticipating a defeat”; Steven Mazie in The Economist, who observes that “in a case where the president’s motives are in question, Mr Trump has given opponents of the travel ban a rather remarkable trove of comments to use against him in their pleadings to the Supreme Court”; and Tony Mauro in The National Law Journal (subscription or registration required), who notes that in “addition to deciding whether to grant review in the case, the high court may now face a new dilemma: are Trump tweets fair game for citation in Supreme Court rulings as a modern-day form of ‘excited utterance?’”

At Take Care, Leah Littman enumerates the ways in which the “President’s statements undercut arguments, both large and small, that the administration has made to defend the legality of the travel ban.” In The Atlantic, Garrett Epps observes that “Trump could not have more directly undermined [Acting Solicitor General Jeffrey] Wall’s petition if he had been trying to.” At LockLaw Blog, Ryan Lockman argues that the tweets “not only threaten the legitimacy of the executive branch, but also that of the Supreme Court if it fails to check Trump’s powers.” But in The Washington Post’s Volokh Conspiracy blog, Eugene Kontorovich argues that the tweets “may actually buttress the government’s defense of the travel restrictions in the Supreme Court.”

At Empirical SCOTUS, Adam Feldman examines statistics suggesting that the Supreme Court will “minimize its involvement” in the travel-ban case “to the maximum degree possible.” At the Human Rights at Home blog, Martha Davis maintains that as “the travel ban cases proceed, it will be important to more fully develop the argument arising from  US international and domestic obligations under the Refugee Convention.” In an op-ed at The Hill, David Weisberg argues that because Justice Ruth Bader Ginsburg “has publicly labeled then-candidate Trump a ‘faker’ who ‘says whatever comes into his head at the moment,’” she should “recuse herself from the travel-ban case.”


  • In an op-ed for The Advocate, Christopher Stoll cites “the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges,” which held that “[s]ame-sex married couples must be treated equally under the law in every way,” in urging the court to review the Arkansas Supreme Court’s ruling that “Obergefell does not require the state to apply its birth certificate law equally to same-sex couples.”
  • At PrawfsBlawg, Cassandra Robertson discusses Water Splash v. Menon, in which the court ruled that the Hague Service Convention permits service of process by mail, noting that it “may seem like a minor question, but any litigator who handles transnational cases has probably come across the issue–the question has been litigated for more than thirty years and … had arisen in more than 120 reported cases.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jun. 6, 2017, 6:57 AM),