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Tuesday round-up

The justices will hear oral arguments in two cases this morning. The first is United States v. Microsoft Corp., which asks whether the Stored Communications Act allows the government to gain access from email providers to data that is stored overseas. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Frederick Titcomb and Vadim Belinsky provide a preview for Cornell Law School’s Legal Information Institute. Counting to 5 (podcast) also has a preview, and Subscript offers a graphic explainer. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.] At NPR, Nina Totenberg reports that “[a]lthough the [SCA] was designed to address electronic communications, Congress did not predict the technological revolution, which has since poked major holes in the legislation.” At NBC News, Pete Williams reports that “[a] key issue in the case is where the search occurs.” Steven Mazie takes a quick look at the case at The Economist’s Espresso blog. In an op-ed for The Hill, Curt Levey argues for “a narrow ruling that leaves plenty of room for Congress to modernize the SCA as it sees fit.”

This morning’s second case is Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim. Heidi Kitrosser previewed the case for this blog. Simon Bord and Katherine Thibodeau have Cornell’s preview. Subscript’s graphic explainer is here. At the Associated Press, Curt Anderson reports that Fane Lozman, “[a] Florida man who already won an improbable victory before the U.S. Supreme Court[,] is hoping legal lightning strikes twice in a First Amendment case pitting police powers of arrest against the right to speak freely and protest.” Additional coverage comes from Nina Totenberg at NPR.

Yesterday the justices issued orders from last Friday’s conference. They denied the administration’s request for review of a district-court order blocking the termination of the Deferred Action for Childhood Arrivals program and added three cases to their merits docket for next term. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court. For USA Today, Richard Wolf reports on the DACA order, noting that the court “simply allowed the case to run its normal course through the appeals court, which it asked to ‘proceed expeditiously,” and that “[t]he case still could come to the high court in the future.” For The New York Times, Adam Liptak and Michael Shear report that “[t]he court’s decision not to hear the administration’s appeal was expected, as no appeals court has yet ruled on the issue.” Additional coverage comes from David Nakamura and Robert Barnes for The Washington Post, Pete Williams at NBC News, Lydia Wheeler and Rafael Bernal at The Hill, Stef Kight at Axios, Josh Gerstein and Ted Hesson at Politico, Jessica Gresko at the Associated Press, Alice Ollstein at Talking Points Memo, Lawrence Hurley and Andrew Chung at Reuters, Chris Geidner at BuzzFeed News, and Brent Kendall for The Wall Street Journal, who reports that “[t]he decision is likely to take pressure off lawmakers in both parties to act on a legalization program for the DACA population.” At Vox, Dara Lind looks at the effect of the order on participants in the DACA program. Commentary comes from Kent Scheidegger at Crime and Consequences.

At Reuters, Lawrence Hurley reports that the justices also “turned away a challenge led by states and environmental groups to an Environmental Protection Agency regulation that lets government agencies transfer water between different bodies, such as rivers and lakes, without needing to protect against pollution.” For Capitol Media Services (via the Arizona Capitol Times), Howard Fischer reports that “[i]n what could be a key victory for gay rights, the U.S. Supreme Court refused Monday to overturn a ruling that says gay couples are entitled to the same parenting rights as opposite-sex people when they get divorced.” At Crime and Consequences, Kent Scheidegger looks at two cert denials in capital cases from Florida “where the jury was unanimous, even though not instructed that it had to be.”

For Capitol Media Services (via, Howard Fischer reports that among the cases the court added to its docket for next term is Mount Lemmon Fire District v. Guido, in which the justices will decide “whether the Mount Lemmon Fire District — and any other small government employer — is exempt from age-discrimination laws.” At Crime and Consequences, Kent Scheidegger comments on another of yesterday’s grants, Madison v. Alabama, an Eighth Amendment challenge to the execution a death-row inmate who has dementia and cannot remember his crime. In another post, Scheidegger speculates that the court’s delay in disposing of the cert petition in Hidalgo v. Arizona, a challenge to Arizona’s death-penalty scheme and the death penalty nationwide, is because “the Court has already decided to turn the case down, and Justice Breyer is penning yet another magnum opus of a dissent.”

Yesterday the justices also heard oral argument in one of the term’s major cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the justices will decide whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Mark Walsh has a “view” from the courtroom for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.] At Bloomberg, Greg Stohr reports that “[m]embers of the U.S. Supreme Court clashed sharply Monday over the right of public-sector workers to refuse to pay union fees, while the justice who will cast the deciding vote[, Neil Gorsuch,] kept silent during an hour-long argument.” Additional coverage of the argument in Janus comes from Mark Walsh at Education Week’s School Law Blog, Adam Liptak for The New York Times, Nina Totenberg at NPR, David Savage at the Los Angeles Times, Jess Bravin for The Wall Street Journal, Kevin Daley at The Daily Caller, Madeline Will at Education Week, Lawrence Hurley and Robert Iafolla at Reuters, and Richard Wolf for USA Today, who reports that the case “is backed by conservative groups that have tried for years to overturn the court’s decision upholding the fees for collective bargaining, but not for political action.”

At FiveThirtyEight, Amelia Thomson-DeVeaux points out that “[t]o make their arguments, both sides in [Janus] are drawing on a natural experiment that has been going on in the states for years — by comparing right-to-work and non-right-to-work states and by examining the results of states changing their policies on union fees,” but that “[a]s with many natural experiments, … disentangling the effects of a single policy difference from the myriad forces affecting something like wage growth can be nearly impossible.” At The Washington Post’s Monkey Cage blog, Daniel DiSalvo and Jeffrey Kucik maintain that “the Janus decision not only will affect unions’ power and influence but will also determine whether and how states avoid a looming fiscal crisis.” At Vox, P.R. Lockhart explores why a ruling against the union “could be particularly significant for people of color, who have benefited greatly from membership in public sector unions.” At The Atlantic, Garrett Epps argues that “[a] responsible course—as even Solicitor General Francisco seemed to admit—would be to remand the case for the creation of a factual record to supplant some of the airy theorizing the advocates (and the justices) engaged in.”

In an op-ed for The Washington Examiner, Ilya Shapiro maintains that “[t]he smart money remains that Gorsuch will vote with Justices Roberts, Kennedy, Thomas … and Alito in supporting Janus’s lawsuit.” At Slate, Sheldon Whitehouse argues that “[t]he pattern of consistent 5-4 pro-Republican and pro-corporate decisions, often marked by procedural irregularities and well-funded and often anonymous interests bankrolling the litigation, at some point no longer looks to the ‘intelligent man on the street’ like an exercise in impartial adjudication, but rather the exercise of raw political power.” Additional commentary on Janus comes from Mark Pulliam at Law and Liberty, Michael Paarlberg in an op-ed at The Guardian, the editorial board of The New York Times, Robert Alt at National Review, Brad Lander and Helen Gym at The Nation, Harold Meyerson at The American Prospect, Celine McNicholas and Zane Mokhiber, also at The American Prospect, Deborah La Fetra at the Pacific Legal Foundation blog, Ian Millhiser at ThinkProgress, the NFIB blog, Yvonne Walker in an op-ed for The New York Times, Dana Milbank in an op-ed for The Washington Post, and Lisa Soronen at the National Conference of State Legislatures blog.

Yesterday’s second argument was in Ohio v. American Express Co., which involves the application of antitrust law to credit-card-network anti-steering rules. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in Ohio v. American Express.] At Reuters, Andrew Chung reports that “[t]he legal issue centered on how courts find antitrust violations when businesses cater to two groups at the same time and limits on competition for one side might offer benefits for the other.” According to David McLaughlin at Bloomberg, the “justices appeared divided over whether rules American Express Co. imposes on merchants violate antitrust laws, in a case that will affect not only the credit-card business but may also limit future enforcement against dominant companies.”


  • At the Constitutional Law Prof Blog, Ruthann Robson looks at Minnesota Voters Alliance v. Mansky, a case the justice will hear tomorrow that asks whether a Minnesota law banning political apparel at polling places violates the First Amendment, remarking that “it will be interesting to hear how specific comparisons the United States Supreme Court’s own practices in banning political t-shirts and similar attire will be.”
  • At Legal Sports Report, Ryan Rodenberg provides “a primer on what the most consequential sports bettingcourt decision ever[, Christie v. National Collegiate Athletic Association,] could look like after the Supreme Court’s sausage-making is complete.”
  • The NFIB blog weighs in on Salt River Agricultural Improvement and Power District v. SolarCity Corp., which asks when a state or local government can appeal the denial of a motion to dismiss based on state-action immunity, arguing that “public or quasi-public defendants should receive no special privileges in litigation that would not apply to private parties.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.]
  • At The National Law Journal (subscription or registration required), Tony Mauro reports on a recent occasion in which Chief Justice John Roberts, who “has been known as a calm, even-tempered voice at the court,” became “upset” at oral argument.
  • At Empirical SCOTUS, Adam Feldman “attempts to gauge the justices that have spent the most time and energy on dissenting opinions through a comparison of the actual justices’ dissents” from 1980 to the present.
  • At The New Republic, Matt Ford maintains that in the fight over gun-control regulations, gun-control advocates have a powerful silent ally: the U.S. Supreme Court,” noting that “[i]t’s been almost a decade since the justices agreed to hear a case on the Second Amendment, despite multiple opportunities to do so.”
  • At Law and Liberty, John McGinnis argues that “the veneration of Justice [Ruth Bader] Ginsburg shows what the left really likes in a Supreme Court justices—reliably left wing results even if they come from an ethically challenged and not otherwise particularly distinguished justice.”
  • At The World and Everything In It (podcast), Mary Reichard discusses last week’s four opinions, as well as the oral arguments in City of Hays v. Vogt, which asks whether a probable-cause hearing is part of a criminal case within the meaning of the Fifth Amendment’s self-incrimination clause, and Currier v. Virginia, which asks what happens to a defendant’s double jeopardy protections when he consents to sequential trials for multiple, overlapping offenses.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Feb. 27, 2018, 7:23 AM),