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Tuesday round-up

The Supreme Court released its rulings in three cases yesterday, placating court-watchers frustrated by the slow pace of opinions this term. Mark Walsh has a “view” from the courtroom for this blog. Yesterday’s first opinion was in National Association of Manufacturers v. Department of Defense, in which a unanimous court held that challenges to the “waters of the United States” rule must be filed in federal district courts. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter analyzes the opinion for this blog. Subscript has a graphic explainer. At E&E News, Amanda Reilly and Ariel Wittenberg note that “[t]he decision is a loss for the federal government, which had argued in court under both the Obama and Trump administrations that the Clean Water Act should be interpreted functionally, rather than literally,” and “[i]t also complicates the Trump administration’s efforts to repeal and replace the rule.” Commentary comes from NFIB, which calls it “a good day for small business.”

In Artis v. District of Columbia, the court ruled 5-4, over a dissent by Justice Neil Gorsuch, that the tolling provisions of the federal supplemental jurisdiction statute stop the clock on the state limitations period while the state claims are pending in federal court. At PrawfsBlawg, Howard Wasserman notes that “Gorsuch’s dissent emphasized a concern that arose during arguments–that state courts may now have to deal with claims that were untimely by many years,” but explains that “[s]uch timing should not be a significant concern in the mine run of cases.”

In District of Columbia v. Wesby, the court held that police officers sued for false arrest after arresting partygoers in an abandoned house had probable cause for the arrests and were entitled to immunity from the lawsuit. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Subscript’s graphic explainer is here. For The Washington Post, Robert Barnes and Ann Marimow report that “[t]he court ruled unanimously that the officers could not be held liable for making the arrests after they came upon a scene of ‘utter Bacchanalia,’ as Justice Clarence Thomas described it in announcing the decision, at a house party where the homeowner was not present and it was unclear if the guests had been invited.” Additional coverage comes from Jess Bravin for The Wall Street Journal, Richard Wolf at USA Today and Adam Liptak for The New York Times. At Crime and Consequences, Kent Scheidegger calls the decision “a win for cops and for looking at evidence as a wall and not a collection of bricks.” At PrawfsBlawg, Michael Mannheimer wonders whether Justice Ruth Bader Ginsburg’s opinion concurring in the judgment in part, in which she questioned the court’s unanimous 1996 holding in Whren v. United States that “rejected the argument that police officer motives were relevant to determining whether there was probable cause,” might be “the first crack in the Whren wall.”

Yesterday the court also agreed to review a case from last week’s conference, Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a challenge to the federal government’s critical-habitat designation for the dusky gopher frog that will be heard and decided next term. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. Additional coverage of the grant in Weyerhaeuser comes from Tony Mauro for The National Law Journal (subscription or registration required), Lawrence Hurley at Reuters, Ariane de Vogue at CNN, Richard Wolf for USA Today, and Brent Kendall for The Wall Street Journal, who reports that “[t]he case pits landowners and property-rights advocates against environmentalists and the federal government.”

At National Review, David French worries that in an amicus brief in support of neither party in National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, including contraception and abortion, “the Trump administration is arguing for a standard that grants the state greater power to censor.” Ed Whelan, also at National Review, points out that the brief “would seem to invite the extraordinary conclusion that all of the speech of pro-life pregnancy centers is commercial speech and therefore easily regulable (subject, in most instances, to only very deferential review) by every state and city in the country.”

For The Washington Post, Derek Hawkins reports that NPR reporter Nina Totenberg’s interview of Justice Ruth Bader Ginsburg at the Sundance Film Festival on Sunday “touched on the 84-year-old justice’s experiences with sexual misconduct and her reaction to the #MeToo movement, as well as her career as a women’s rights advocate and her future on the high court.” Additional coverage comes from Joseph Williams at U.S. News & World Report. BBC News has video of the interview.


  • At Bloomberg BNA, Patrick Gregory lists four things to know about Judge Kevin Newsom, one of the most recent additions to President Donald Trump’s list of potential Supreme Court nominees, noting that “[a]s an attorney, Newsom criticized substantive due process—the doctrine applied by the U.S. Supreme Court in cases involving reproductive rights and same-sex intimacy.”
  • At The World and Everything In It, Mary Reichard looks at the oral arguments in Murphy v. Smith, which asks who should pay attorney’s fees in successful civil-rights cases brought on behalf of prisoners, and Marinello v. United States, in which the justices are considering the limits of tax-law obstruction charges.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jan. 23, 2018, 7:33 AM),