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Friday round-up

Yesterday the Supreme Court released four decisions, including one in a high-profile case with significant implications for ecommerce. In South Dakota v. Wayfair, the justices voted 5-4 to overrule two prior cases that prohibited states from requiring out-of-state retailers who don’t have a store or warehouse in the state to collect tax on sales to state residents. Mark Walsh has this blog’s opinion analysis. Subscript has a graphic explainer for the decision. At Good Judgment, Ryan Adler notes that the outcome “was not a win” for forecasters. At NPR, Nina Totenberg reports that the ruling “reversed decades-old decisions that protected out-of-state vendors from sales tax obligations unless the vendor had a physical presence in the state” and that “date back to a time when mail-order sales were relatively small and online sales were all but nonexistent.” Additional coverage comes from Brent Kendall, Jess Bravin and Laura Stevens for The Wall Street Journal, Bill Mears at Fox News, Richard Wolf at USA Today, Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Greg Stohr at Bloomberg, Pete Williams at NBC News, Lydia Wheeler and Naomi Jagoda at The Hill, Mark Walsh at Education Week’s School Law Blog, Bernie Becker and Josh Gerstein at Politico, Jon Chesto for the Boston Globe, Lawrence Hurley at Reuters, Tony Mauro and Marcia Coyle at The National Law Journal (subscription or registration required), and David Savage for the Los Angeles Times, who reports that “[t]he decision will inject billions of dollars into state coffers, but also increase prices for many online shoppers.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

At Dorf on Law, Michael Dorf maintains that “Justice Kennedy’s majority opinion inadequately responds to the key objection by Chief Justice Roberts” in dissent that a change in states’ ability to tax out-of-state retailers should come from Congress. Additional commentary comes from Lisa Soronen at the National Conference of State Legislatures Blog.

The court also held 7-2 in Lucia v. Securities and Exchange Commission, that SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause, who have to be appointed by the president, a court or a department head. Ronald Mann analyzes the opinion for this blog. Subscript’s graphic explainer is here. For The Washington Post, Robert Barnes reports that “[i]t was not immediately clear how many other SEC rulings will require new hearings or how the decision will affect administrative law judges in other government departments.” Additional coverage comes from Adam Liptak for The New York Times, David Savage for the Los Angeles Times, Andrew Chung at Reuters, and Tony Mauro at The National Law Journal (subscription or registration required), who reports that the federal government had “urged the court to consider strengthening presidential power to remove as well as appoint key officers,” but the court “declined that invitation.” At Reason’s Volokh Conspiracy blog, Jonathan Adler notes the “unusual line-up[s]” in Lucia and Wayfair.

The justices held 8-1 in Pereira v. Sessions that a notice ordering a noncitizen to appear for deportation proceedings without specifying a time or place does not stop the clock on the noncitizen’s accrual of continuous presence in the U.S. [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 petitioner in this case.] At The National Law Journal (subscription or registration required), Tony Mauro reports that in a brief concurrence, “Justice Anthony Kennedy sharply criticized the ‘Chevron’ doctrine, raising questions about the future of judicial deference to federal agencies, and adding to the buzz in Washington about whether he will stay or leave the court.” Additional coverage of Kennedy’s concurrence comes from Amanda Reilly at E&E News, who reports that “[t]he remarks by Kennedy, who is seen as the court’s moderate justice, could reinvigorate the debate over the doctrine’s future.” At Reason’s Hit & Run blog, Damon Root remarks that “[i]t’s a big deal when Justice Kennedy … signals his interest in revisiting such a contentious precedent,” and “[i]t might just mean that Chevron‘s days are numbered.” At Take Care, Joshua Matz warns that “[i]f Chevron is overruled, federal agencies will face a far more treacherous terrain when their actions and regulations are challenged in court” and “[c]ourts, in turn, will assume far greater control of the nation’s regulatory agenda.” At Reason’s Volokh Conspiracy blog, Jonathan Adler maintains that “[w]ere Chevron overturned, it would not mean open season on agency actions.”

The fourth opinion yesterday was in Wisconsin Central Ltd.v. United States, in which the court ruled 5-4 that stock options are not taxable compensation under the Railroad Retirement Tax Act. Daniel Hemel analyzes the opinion for this blog. Here is a graphic explainer from Subscript. Amy Lee Rosen covers the decision for Law360 (subscription required).Mark Walsh has a “view” from the courtroom of today’s opinion announcements for this blog.

The editorial board of The Washington Post weighs in on this week’s two partisan-gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, both of which the justices sent back to the lower courts without reaching the merits, warning that “the justices cannot dodge responsibility forever.” Commentary on Whitford comes from Cullen Seltzer at SandsAnderson and Jessica Mason Pieklo at Rewire.News. At the Election Law Blog, Rick Hasen notes that supplemental briefs filed in the wake of Whitford may delay disposition of an appeal in a North Carolina partisan-gerrymandering case. At The Inquirer, Jonathan Lai and Liz Navratil report that “Pennsylvania’s top two Republican lawmakers filed an appeal Thursday with the U.S. Supreme Court challenging a ruling that the state’s congressional boundaries constituted a partisan gerrymander.”

At Local 10 News, Bob Norman interviews Fane Lozman, whose First Amendment retaliatory-arrest suit the court revived this week in Lozman v. City of Riviera Beach. Scott Cosenza discusses the decision at Liberty Nation. Additional commentary comes from the editorial board of the Los Angeles Times.

At Slate, former State Department consular officer Christopher Richardson casts doubt on the validity of the visa-waiver process the government has relied to defend its position in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban, calling the process “window dressing to mask the true intent of Trump’s Muslim ban.” At ThinkProgress, Ian Millhiser argues that this “is, at its heart, a case about whether America’s borders are a civil rights-free zone.”


  • The editorial board of the Los Angeles Times urges the justices to review Dassey v. Dittmann, a cert petition filed by one of the subjects of the Netflix documentary series “Making a Murderer,” which highlights “the widespread failure by lower courts to take seriously the Supreme Court’s teaching over the years that ‘juveniles and those with intellectual deficits are at particular risk of confessing involuntarily — and often falsely — under the strain of coercive police tactics.’” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
  • At her eponymous blog, Amy Howe looks at who may be writing this term’s 10 remaining opinions.
  • At The Daily Wire, Jay Hobbs proclaims that “[i]t’s free speech or bust” in National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge to a California law that requires crisis-pregnancy centers to disclose information about publicly funded family-planning services, including abortion.
  • At the Mississippi Business Journal, Ben Williams maintains that “[r]egardless of what Congress and the States do with sports gaming” after the court’s ruling in Murphy v. National Collegiate Athletic Association, in which the court struck down the federal law that bars states from legalizing sports betting, “the clear winner in this case is the Tenth Amendment.”
  • The Download highlights Apple v. Pepper, an antitrust suit against Apple brought by IPhone app purchasers that the court will consider next term.
  • At The George Washington Law Review’s On the Docket blog, Donald Clarke looks at Animal Science Products v. Hebei Welcome Pharmaceutical Co., in which the court held that courts are not bound to defer to a foreign government’s interpretations of its own law, finding the decision “consistent with international practice and very likely the practice of the Chinese government itself.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Jun. 22, 2018, 6:31 AM),