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Friday round-up

In anticipation of Monday’s oral argument, Supreme Court coverage and commentary focus on Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At Bloomberg, Greg Stohr calls the case a “clash [that] is as much about the value of unions as it is about constitutional rights.” Adam Liptak looks at Janus for The New York Times, noting that “[a] ruling against public unions is unlikely to have a direct impact on unionized employees of private businesses,” but that “most of the labor movement’s strength these days is in the public sector.” In an op-ed at Forbes, Brian Miller counters the argument that “if workers were given the choice, many might leave the union and free ride off its services,” pointing to evidence “showing union membership has actually increased in at least three states that have already ended compelled union fees.” At The Hill, Lee Saunders argues that a “ruling for the plaintiff would also be a breach of federalism, normally a cherished judicial principle on the right, by mandating a one-size-fits-all solution for an inherently local concern.” Additional commentary comes from Ian Millhiser at ThinkProgress.

For USA Today, Richard Wolf reports that United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas, “is forcing the Supreme Court once again to match old laws to new technology.” Kimberly Robinson and Jordan Rubin discuss the case in an episode of Bloomberg BNA’s Cases and Controversies podcast.

For this blog, Theresa Gabaldon analyzes Wednesday’s opinion in Digital Realty Trust Inc. v. Somers, in which the court ruled that the anti-retaliation provision of the Dodd-Frank Act does not apply to a whistleblower who has not first reported a violation to the Securities and Exchange Commission. Subscript offers a graphic explainer. At Reuters, Alison Frankel reports that “[b]ecause the justices concluded the statute was not ambiguous in its definition of a whistleblower, the court never had to decide whether to defer to the SEC’s interpretation that Dodd-Frank protection extends to employees who have reported internally and not to the commission.” At Roll Call, Todd Ruger reports that two concurring opinions in the case reveal that “the Supreme Court is as divided as ever on whether congressional committee reports should be used to help understand what Congress meant when drafting and enacting a law.” At The Economist’s Democracy in America blog, Steven Mazie also looks at the concurring opinions, noting that “Justice Ginsburg’s final move citing the committee report ignited a small but telling tiff between two subsets of jurists” about the use of legislative history. The editorial board of The Wall Street Journal weighs in on the exchange, arguing that “Justice Sotomayor wants the judicial running room of reports and history through which she can drive her political preferences,” while “Justice Thomas wants the Court to follow what the law actually says.” At The National Law Journal (subscription or registration required), Richard Hasen takes the dispute to suggest that “[w]hen [Justice Elena] Kagan declared at a 2015 Scalia Lecture at Harvard Law School that ‘we are all textualists now,’ she may have been a bit premature.”

On Wednesday the justices also decided Murphy v. Smith, in which the justices held that courts must apply up to 25 percent of a judgment to pay attorney’s fees in civil-rights cases brought on behalf of prisoners. Charlotte Garden analyzes the opinion for this blog. Dan McCue reports at Courthouse News Service that “[i]n a ruling for the majority that relied heavily on the 2002 edition of the Cambridge Grammar of the English Language, Justice Neil Gorsuch said the specific statutory language of the statute uses the word ‘shall,’ [which] create[s] a mandate, not a liberty, giving a district court a non-discretionary duty to perform.”

After issuing decisions, the justices heard oral arguments in two criminal-procedure cases. The first was Rosales-Mireles v. United States, which asks when erroneous applications of the U.S. Sentencing Guidelines should be corrected on plain-error review. Evan Lee analyzes the argument for this blog. At Courthouse News Service, Tim Ryan reports that “Justice Elena Kagan noted that Justice Neil Gorsuch penned an opinion on [the issue] in his prior position as a judge on the 10th Circuit, after a federal judge misapplied federal guidelines while sentencing a drug offender.” Additional coverage comes from Kevin Penton at Law360 (subscription required). Wednesday’s second argument was in Dahda v. United States, in which the justices considered how broadly to read a statute requiring the exclusion of a wiretap order that exceeds a judge’s territorial jurisdiction. Richard Re has this blog’s argument analysis. Additional coverage comes from Brandi Buchman at Courthouse News Service and from Jimmy Hoover at Law360 (subscription required), who reports that “Wednesday’s hearing focused primarily on whether the wiretap orders were insufficient under Title III, a threshold question that is distinct from” the question whether “the territorial issue was … one of Congress’ ‘core concerns’ in enacting Title III,” which “the Supreme Court agreed to resolve when it granted certiorari in the case.”


  • At Bloomberg BNA, Jordan Rubin previews Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim, which will be argued next Tuesday.
  • In the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “talk about dueling concurrences and the witch hunt against Clarence Thomas.”
  • At Injustice Today, Aviva Shen weighs in on the Louisiana parole board’s decision to deny parole to 71-year-old Henry Montgomery, in whose case “SCOTUS held that its previous ruling (Miller v. Alabama)which declared mandatory juvenile life without parole sentences unconstitutional, should be applied retroactively.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Feb. 23, 2018, 7:07 AM),