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Monday round-up

At CNN, Ariane de Vogue reports that as the justices take the bench this morning for what is likely the last Monday of the term, “[s]ix opinions remain, including on the travel ban, public sector unions and redistricting, and one looming question that could change the future direction of the court: Will there be a retirement?” Steven Mazie takes a quick look at the remaining cases for The Economist’s Espresso blog. Additional coverage of the final lap of the term comes from Lawrence Hurley and Andrew Chung at Reuters.

OnFriday the Supreme Court decided four cases, including a closely watched Fourth Amendment case, Carpenter v. United States, in which the justices held 5-4 that the government ordinarily needs a warrant to access historical cell-site location information. At Good Judgment, Ryan Adler assesses the crowd’s forecast in the case. At NPR, Nina Totenberg reports that “until now, the prevailing legal theory was that if an individual voluntarily shares his information with a third party — for instance, by signing up for cellphone service — police can get that information without a search warrant,” but that “[o]n Friday, the Supreme Court blew a hole in that theory.” Additional coverage comes from Louise Matsakis at Wired and from Lyle Denniston at Constitution Daily, who reports that “[e]ven as it insisted it was acting narrowly, and spoke of some limits on the reach of the ruling, the Court definitely gave a modern cast to the Fourth Amendment, now 227 years old.” Commentary and analysis come from Curt Levey in an op-ed for Fox News, Krebs on Security, Jon Schuppe at NBC News, Erica Goldberg at PrawfsBlawg, and Garrett Epps at The Atlantic.

The justices also held 5-4 on Friday in Currier v. Virginia that a defendant who consents to sequential trials for multiple, overlapping offenses waives his right to make an issue-preclusion claim under the Constitution’s double jeopardy clause after an acquittal in the first trial. Lissa Griffin analyzes the opinion for this blog, and Subscript Law has a graphic explainer. At Constitution Daily, Scott Bomboy reports that the case involved “the legal idea that a defendant can’t be tried for the same issue in more than one criminal trial.” Kent Scheidegger discusses the ruling at Crime and Consequences.

In Ortiz v. United States, the justices held 7-2 that a judge’s simultaneous service on two military courts does not violate the dual-officeholder ban. This blog’s opinion analysis comes from Amy Howe and was first published at Howe on the Court. At PrawfsBlawg, Howard Wasserman notes that “[t]he dispute leaves open whether SCOTUS could review decisions by modern administrative agencies (something Congress has never purported to do).”

Friday’s final opinion was in WesternGeco LLC v. ION Geophysical Corp., in which the justices ruled 7-2 that damages for overseas infringement of a domestic patent include lost profits for overseas contracts the patentholder would have obtained if the infringement had not occurred. Ronald Mann analyzes the opinion for this blog. Subscript Law’s graphic explainer is here. At PrawfsBlawg, Cassandra Robertson calls the decision “an interesting departure from its recent trend toward limiting litigation with foreign dimensions.”

At Governing, Liz Farmer reports that South Dakota v. Wayfair, in which the justices voted last week 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, “is one of the most significant state and local finance rulings in the modern era and comes at a time when sales tax revenues have been steadily shrinking thanks in part to more purchases being made online.” Law360 (subscription required) offers comprehensive coverage of the decision. For The Wall Street Journal, Jess Bravin reports that the decision “culminated a yearslong campaign by state governments and big-box stores determined to close a loophole they argued was draining state treasuries and disadvantaging brick-and-mortar shops,” “underscor[ing] that Supreme Court cases don’t always arise by happenstance.” At The Economist’s Democracy in America blog, Steven Mazie remarks that in Chief Justice John Roberts’ dissent, “[t]he point of contention was not whether the 50-year-old physical presence rule was the right one, constitutionally—all nine justices seem to agree it wasn’t—but whether the court in 2018 should overrule a decision that has been standing since 1967.” Commentary comes from Will Baude at PrawfsBlawg, who wonders what the debate between the majority and the dissent about the principles governing the application of stare decisis in the case “implies about other judge-made doctrines that might hit the Court’s docket in the future.”  [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 Slate, Mark Joseph Stern suggests that Justice Elena Kagan’s majority opinion in Lucia v. Securities and Exchange Commission, in which the court held last week 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, is an example of the justice’s “wrestling the court’s far-right justices to a draw in order to forestall disaster.” Commentary comes from Arthur Sapper at Ogletree Deakins, Coates Lear at The National Law Review, and Carlton Smith at Procedurally Taxing. Counting to 5 (podcast) looks at the decisions in Lucia and Wayfair.

For this blog, Jennifer Chacon analyzes last week’s decision in Pereira v. Sessions, in which the court held 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. Subscript has a graphic explainer for the decision. At PrawfsBlawg, Chris Walker looks at Justice Anthony Kennedy’s “solo concurrence, in which he added his voice to the judicial chorus for reconsidering Chevron deference.” [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 George Washington Law Review’s On the Docket blog, Alan Morrison finds “more good news than bad in [last] week’s redistricting decisions”  in 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, “even though they are a temporary setback in ending the practice.” Additional commentary comes from Kenneth Jost at Jost on Justice. Counting to 5 (podcast) features a discussion of the case.

At The National Law Review, Kim Rinehart and others discuss Lozman v. City of Riviera Beach, in which the justices revived a First Amendment retaliatory-arrest claim and “remanded his case for consideration of whether retaliation was in fact a but-for cause of [Lozman’s] arrest and whether the arrest constituted an official act on the part of the City.” At The Scoop News, Francesco Abbruzzino hopes the ruling “will be an eye opener for the local government institutions, when it comes to conducting meetings.” At First Mondays (podcast), Dan Epps and Ian Samuel interview “two-time Supreme Court winner Fane Lozman” – “the man, the myth, the legend.”


  • At, Sabrina Eaton reports that “[d]ays after the U.S. Supreme Court upheld Ohio’s process for removing inactive voters from its rolls [in Husted v. A. Philip Randolph Institute], U.S. Sen. Sherrod Brown on Wednesday introduced a bill that would make that process illegal.”
  • The Heritage Foundation’s SCOTUS 101 podcast features discussions of “the decisions in Carpenter, Lucia, and Wayfair and whether Justice Kennedy is dropping hints that he won’t retire,” as well as a “chat with the newest addition to the D.C. Circuit, Judge Greg Katsas.”
  • At Ogletree Deakins, Matthew Wholey and Hanna Raanen look at China Agritech v. Resh, in which the court held that the rule suspending the statute of limitations for individual claims filed after a failed class action does not apply to subsequent class actions. [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 News, Joel Dodge argues that the court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court held that, because it did not exhibit religious neutrality, the commission violated the free-exercise rights of a baker who refused to make a cake for a same-sex wedding, “could actually make it harderfor President Donald Trump’s administration to carry out its assault on access to contraception.”
  • At the Election Law Blog, Rick Hasen suggests that Abbott v. Perez, two complex redistricting cases from Texas, “could well … end[] not with a major decision, but with a punt (as in Benisek) on the standards for issuing injunctions.”
  • At The George Washington Law Review’s On the Docket blog, Naomi Cahn looks at Sveen v. Melin, in which the court that retroactive application of a state law providing that divorce automatically nullifies the designation of a former spouse as a life-insurance beneficiary does not violate the Constitution’s contracts clause.
  • Commentary on WesternGeco LLC v. ION Geophysical Corp., in which the justices ruled last week that damages for overseas infringement of a domestic patent include lost profits for overseas contracts the patentholder would have obtained if the infringement had not occurred. comes from Michael Renaud at The National Law Review.
  • At Slate, Steve Vladeck writes that the Supreme Court has been asked to review a decision by “the 5thS. Circuit Court of Appeals (the federal appeals court with jurisdiction over Louisiana, Mississippi, and Texas) [holding] that, even if a CBP agent at the U.S.-Mexico border commits what one judge described as a ‘cold-blooded murder,’ the victim’s family cannot sue him for damages.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jun. 25, 2018, 7:18 AM),