Breaking News

Last Monday in June: The final six

The justices are expected to take the bench again this morning to issue opinions in argued cases. After Friday’s four opinions, there are six cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia. The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. There are two decisions still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because four justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees.

Ohio v. American Express (argued February 26, 2018): This is an antitrust case, in which a group of states are challenging a provision in the contract between American Express and the merchants that accept its cards; the provision bars the merchants from trying to steer their customers to use a particular credit card. The main issues before the court are twofold. First, at what market should courts look at in a case like this: just the merchants, or the merchants and the cardholders? Second, if courts look at both the merchants and the cardholders as the market, do the plaintiffs have to show that both sides are harmed by the provision?

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Abbott v. Perez (argued April 24, 2018): This case involves allegations of racial gerrymandering – that is, that Texas lawmakers drew federal congressional and state legislative districts that harmed black and Hispanic residents there. It began as a challenge to maps drawn by the state’s Republican-controlled legislature in 2011. In 2012, a federal district court drew new maps for the election that year; the state legislature adopted those maps the following year. Last year the district court invalidated parts of the 2013 plans, on the ground that they perpetuated discrimination in the 2011 plan, and the Supreme Court agreed to weigh in. Before the justices can reach the merits of the case, though, they must determine whether they have the authority to hear it at all, when the district court did not either issue or deny an injunction – a requirement before the Supreme Court can review appeals from a three-judge district court. If the justices do reach the merits, they then must decide whether the state could have been discriminating against minority voters when it was simply using the maps that the district court had ordered it to use.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

Recommended Citation: Amy Howe, Last Monday in June: The final six, SCOTUSblog (Jun. 25, 2018, 7:26 AM),