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Tuesday round-up

Yesterday the Supreme Court accepted one more case for next term, Oil States Energy Services LLC v. Greene’s Energy Group, LLC, in which the justices will decide whether inter partes review of already-issued patents is constitutional. The justices also issued a per curiam opinion in Virginia v. LeBlanc, in which they reversed a federal appeals court to hold that a Virginia trial court was not unreasonable in ruling that Virginia’s geriatric-release program satisfies Graham v. Florida’s requirement that juvenile offenders convicted of nonhomicide crimes not be sentenced to life imprisonment without parole. Amy Howe covers yesterday’s orders for this blog. At PrawfsBlawg, Chris Walker notes that “[t]he stakes are high” in Oil States, because “[t]his agency patent adjudication procedure has become extremely popular among those parties seeking to challenge patents.” Also at PrawfsBlawg, Dan Epps argues that although the opinion in LeBlanc “is pretty straightforward, and in my view right,” “by only summarily reversing for certain kinds of errors but not others, the Court subtly pushes the law in one direction without explaining what it’s doing.”

The court also issued four opinions in argued cases yesterday. Mark Walsh offers a “view” from the courtroom at this blog. In Sessions v. Morales-Santana, the court held that differential treatment of parents by gender in immigration law violates equal protection. Amy Howe analyzes the opinion for this blog. At NPR, Nina Totenberg reports that the “decision marked a major victory for Justice Ruth Bader Ginsburg, who for 20 years has battled unsuccessfully for equal treatment of men and women seeking to pass their citizenship onto their children.” Additional coverage comes from Jess Bravin in The Wall Street Journal, who reports that the “ruling provided cold comfort” to Morales-Santana, because the court held that “in these circumstances it lacked the power to expand an exception to the general immigration law, and could eliminate the discriminatory practice only by ending the advantage afforded to women,” and from Ariane de Vogue at CNN.

At the ImmigrationProfBlog, Kevin Johnson calls the decision in Morales-Santana “another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws” and wonders whether it “marks the beginning of a trend in this Term’s immigration decisions — several that raise constitutional questions.” At The Narrowest Grounds, Asher Steinberg observes that the opinion “has something to say about the appropriate standard of review in cases where it’s alleged that some broad exclusion of aliens is unconstitutionally discriminatory.” At the Human Rights at Home blog, Martha Davis notes that “[i]mportantly for US human rights activists, the opinion took human rights law seriously.”

At the Constitutional Law Prof Blog, Ruthann Robson explains that because “the Court declines to extend the shorter unwed mother residency period to the unwed father,” “this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.” At PrawfsBlawg, Howard Wasserman considers the remedy question, observing that “[w]hen the claim is that the laws are treating one group differently than the other, there are two choices: Extend the advantageous treatment to the disadvantaged group or extend the disadvantage to everyone,” “[a]nd that depends on statutory design.” At Take Care, Ian Samuel asserts that “[t]here is a lot to dislike about the remedy portion of this opinion.” But at Balkinization, Mark Tushnet argues that “the Court’s statement that, pending a statutory revision, the ‘Government must ensure that the laws in question are administered in a manner free from gender-based discrimination’” means that “if there’s discretion to suspend Morales-Santana’s removal, he should get to stay in the United States.” At PrawfsBlawg, Will Baude poses a “more basic question about the judgment in the case,” asking: “[W]hat part of the Second Circuit’s judgment, exactly, did the Supreme Court actually affirm?”

Yesterday also marked Justice Neil Gorsuch’s first opinion –in Henson v. Santander Consumer USA Inc., in which the court held that the Fair Debt Collection Practices Act does not apply to debt buyers. Ronald Mann analyzes the opinion for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] In The Washington Post, Robert Barnes reports that Gorsuch used his first assignment “to showcase both his writing style and much-touted devotion to a textual interpretation of the laws Congress passes.” In USA Today, Richard Wolf reports that Gorsuch’s “reasoning had less to do with the practices of the profession than it did the precise meanings of words, the printed text of statutes, and the proper roles of Congress and the courts.” In The National Law Journal (subscription or registration required), Tony Mauro reports that the “11-page decision bore down on the statutory language, dismissing the petitioner’s assertions about the context of the congressional debate over the law.” In the Los Angeles Times, David Savage describes the opinion as a “concise, pointed essay on how the justices should decide cases — by following the ‘plain terms’ of the law, not by updating an old statute to meet new problems.” At Empirical SCOTUS, Adam Feldman compares some of the metrics of Gorsuch’s opinion, such as the vote count, the days from argument to opinion, and the lower court affected by the ruling, to those of the other justices’ first opinions on the court.

In Microsoft Corp. v. Baker, the justices ruled that federal courts lack jurisdiction to review an order denying class certification after the plaintiffs have voluntarily dismissed the case with prejudice. At PrawfsBlawg, Howard Wasserman suggests that a “better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below.” At Mayer Brown’s Class Defense Blog, Archis Parasharami argues that the “important question of whether Article III requires absent class members to have standing is one that the Supreme Court can and should address eventually, and there is strong reason to believe that the Court—now at full strength with nine Justices—will recognize that the same Article III standing rules apply to all plaintiffs, ‘class action or not.’”

Finally, in Amgen Inc. v. Sandoz Inc., the court held that provisions requiring disclosure of information by an applicant for a biosimilar license are not enforceable by an injunction in federal court, and that an applicant may provide notice of commercial marketing before obtaining a license. At Reuters, Andrew Chung reports that the decision “cut[s] the time it will take for copycat versions of biologic drugs to get to the market.”

Yesterday also saw several developments related to the Justice Department’s requests that the Supreme Court reinstate the executive order banning entry into the U.S. by nationals of six majority-Muslim countries. The U.S. Court of Appeals for the 9th Circuit upheld the lion’s share of a Hawaii district court’s injunction banning implementation of the travel ban on statutory grounds, but lifted the portion of the injunction that had prevented the government from conducting a review of its vetting procedures. Yesterday was also the deadline for the challengers to file their responses to the government’s petition for certiorari in the second travel ban case, from Maryland via the U.S. Court of Appeals for the 4th Circuit, and to the government’s requests for stays of both district court injunctions. Amy Howe reports on the 9th Circuit’s ruling and the challengers’ filings for this blog, as does Lyle Denniston at his eponymous blog.

In The New York Times, Adam Liptak reports that in contrast to the en banc 4th Circuit, “the Ninth Circuit rested its conclusions on statutory grounds,” holding that “Mr. Trump had exceeded the authority Congress had granted him in making national security judgments in the realm of immigration without adequate justification.” In The Washington Post, Matt Zapotosky and Robert Barnes report that the 9th Circuit’s ruling is “both logistically and symbolically important — keeping in place the broadest blockade on Trump’s ban and creating new legal and practical paths for the directive to meet its ultimate demise.” Additional coverage comes from Alan Gomez and Richard Wolf in USA Today. In The Economist, Steven Mazie notes that by “leaving the First Amendment matter off to one side, the Ninth Circuit gave the Supreme Court a possible path to uphold the stays on Mr Trump’s bans without causing undue constitutional drama” In The Atlantic, Garrett Epps agrees that the 9th Circuit’s decision offered the justices “a map of an escape route, if they care to take it.” At Take Care, Leah Litman unpacks “[s]ome of the most important points about the 9th Circuit opinion,” including “that the opinion modifies the district court injunction, thus allowing the government to begin its ‘internal review’ procedures, and what that … suggest[s] about the government’s petitions for certiorari and stay requests.” At Balkinization, Mark Tushnet maintains that the “Ninth Circuit has made it easier for the Court effectively to moot the travel ban cases, simply by denying the requested stay of the Fourth Circuit order.”

In USA Today, Alan Gomez and Richard Wolf report on the parties’ filings at the Supreme Court, noting that “the challengers in two separate cases argued that changes made to Trump’s original ban cannot fix its underlying problem — that it violates the Constitution’s protection against religious discrimination.” At Just Security, Gerald Neuman argues that “[a]dvocates seeking to persuade doubting Justices should not be distracted by the voluminous debates about whether candidate Trump’s statements count against the constitutionality of President Trump’s actions,” because the “religious animus that underlies the Executive Orders is already visible in the text, and the less formal statements merely provide confirmation.”

Constitution Daily notes that yesterday was the 50th anniversary of “a milestone in the Civil Rights Movement”: the Supreme Court’s decision in Loving v. Virginia, “which blocked states from passing laws that banned inter-racial marriages.” At Constitutional Law Prof Blog, Ruthann Robson notes that Creighton Law Review has just published the contributions to its recent symposium on the case, including an article “that considers the Hollywood film, released last year, as well as the previous documentary.” Another assessment of Loving’s significance comes from Osagie Obasogie in The Atlantic, who notes that “it is important, 50 years later, to recognize the Court’s decision in ways that go beyond affirming that love knows no racial boundaries.”


  • In The New York Times, Adam Liptak reports that a recent cert petition in a case contending that “requiring government employees to pay fees for collective bargaining and related activities violates the First Amendment” “is the latest installment in a decades-long campaign by prominent conservative foundations to weaken unions that represent public employees,” and that the case, if the court takes it, will “shine a spotlight on Justice [Neil] Gorsuch, who now holds the decisive vote on a momentous question about the fate of the organized labor movement.”
  • In the Los Angeles Times, David Savage surveys the “notable cases due to be decided this month” before the court adjourns for its summer recess.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jun. 13, 2017, 7:45 AM),