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Wednesday round-up

The justices wrap up the first week of the January session today with one oral argument, in Franchise Tax Board of California v. Hyatt, in which the court will consider whether to overrule a precedent that allows a state to be sued in the courts of another state without its consent. Richard Re previewed the case for this blog. Clotilde Le Roy and Jarrett Field have a preview at Cornell Law School’s Legal Information Institute.

In his first Supreme Court opinion, Justice Brett Kavanaugh wrote for a unanimous court yesterday in Henry Schein, Inc. v. Archer & White Sales, Inc., holding that under the Federal Arbitration Act, a court must enforce an arbitration agreement that requires the arbitrator to decide whether a dispute should be decided in arbitration, regardless of the court’s view of the merits of the request for arbitration. Kevin Daley covers the opinion for The Daily Caller, and Daniel Pasternak provides analysis at The National Law Review. At, Tony Mauro reports that “Kavanaugh’s opinion was a terse 10 pages long, written in straightforward prose, and he began the opinion with a brief summary of the case and its outcome, which not all justices do.” At Bloomberg Law, Kimberly Robinson explains that assigning Kavanaugh a unanimous first opinion accords with an “informal tradition” on the Supreme Court.

Yesterday the justices also held unanimously, in Culbertson v. Berryhill, that a 25 percent cap in the Social Security Act on the award of attorney’s fees applies only to fees for representing a client in court, and not to aggregate fees for both court representation and representation before the agency. Kathryn Moore analyzes the opinion for this blog.

Yesterday the justices denied a stay requested by the challengers in a racial-gerrymandering case, Virginia House of Delegates v. Bethune-Hill. Amy Howe covers the court’s order for this blog, in a post that first appeared at Howe on the Court. Gregory Schneider reports for The Washington Post that by rejecting the stay, the Supreme Court “declined to delay the process of drawing new districts for at least 11 Virginia House of Delegates seats.” At Fox News, Bill Mears reports that “[t]he Republican lawmakers had asked for the lower court’s efforts to be blocked at least until after the Supreme Court holds oral arguments in the next few months on the larger constitutional issues raised by the racial gerrymander claim.”

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that the unnamed corporation at the center of a dispute over a grand jury subpoena believed to be related to Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election returned to the court yesterday with a request for permission to file a cert petition under seal; the court also rejected without comment and with no published dissents the corporation’s request for a stay of a lower-court order requiring it to comply with the subpoena or pay penalties. At Bloomberg, Greg Stohr reports that “[t]he grand jury dispute has been shrouded in mystery, in part because officials closed an entire floor of a federal courthouse in Washington during arguments on Dec. 7.” Additional coverage comes from Bill Mears at Fox News, Robert Barnes and others for The Washington Post, Ariane de Vogue and Katelyn Polantz at CNN, and Adam Liptak for The New York Times.

Elizabeth McCuskey has this blog’s analysis of Monday’s argument in Merck Sharp & Dohme v. Albrecht, which raises questions about whether a state-law failure-to-warn claim is pre-empted by federal law regulating the safety and efficacy of prescription drugs. At Reuters, Andrew Chung reports that the justices “appeared sympathetic to Merck & Co in its bid to fend off hundreds of lawsuits accusing the company of failing to adequately warn patients of the risks of thigh bone fractures associated with its osteoporosis drug Fosamax.”


  • At, Tony Mauro reports that this spring’s oral argument in Iancu v. Brunetti, a “dispute … over streetwear designer Erik Brunetti’s clothing line called FUCT,” “is likely to cause heartburn among the justices, who have long tried to keep profanity from vanquishing civility.”
  • Mark Schleifstein reports at that, with a cert denial on Monday, the Supreme Court “ended a 14-year legal effort by residents of St. Bernard Parish and the Lower 9th Ward of New Orleans to seek compensation for flood damage during Hurricanes Katrina, Rita and Gustav resulting from the failure of the Army Corps of Engineers to maintain the Mississippi River-Gulf Outlet.”
  • At The Economist’s Democracy in America blog, Steven Mazie looks at Rucho v. Common Cause and Lamone v. Benisek, the two partisan-gerrymandering cases on the Supreme Court’s March argument agenda, observing that “[t]he crux of Chief Justice Roberts’ approach to gerrymandering seems to be this: these cases don’t belong here[, because t]he judiciary is not the right venue for setting limits on how legislatures draw electoral lines.”
  • At Law360 (subscription required), Andy Pincus argues that “[p]olitics, not any real governmental concern, is behind the [federal government’s] request for urgent Supreme Court action” in three cases “rejecting Trump administration arguments that the Deferred Action for Childhood Arrivals, or DACA, program is illegal,” and that the Supreme Court “should refuse to become a party to the administration’s political strategy.”
  • At The Federalist Society Review, Joel Nolette previews Rimini Street Inc. v. Oracle USA Inc., in which the justices will consider next week whether the term “full costs” awarded to a prevailing party in a copyright case is limited to taxable costs or also authorizes nontaxable costs.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jan. 9, 2019, 7:16 AM),