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Tuesday round-up

Yesterday the Supreme Court issued decisions in three cases. In Apple v. Pepper, a divided court held that a lawsuit against Apple by iPhone users who allege that Apple is violating federal antitrust laws by requiring them to buy apps only from the company’s App Store can go forward. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript Law has a graphic explainer for the opinion. At The Daily Caller, Kevin Daley reports that “Justice Brett Kavanaugh delivered the 5-4 decision, joined by the high court’s liberal bloc, which may have far-reaching consequences for Silicon Valley.” For The New York Times, Adam Liptak reports that although “[t]he lawsuit is in its early stages, and it must overcome other legal hurdles,” “successful antitrust plaintiffs are entitled to triple damages, meaning Apple’s exposure could be significant.” Additional coverage comes from David Savage for the Los Angeles Times, who reports that “[m]uch of corporate America had joined in support of Apple and argued that such broad antitrust claims should be blocked at the starting gate.” Scott Cosenza discusses the decision at LibertyNation, as does Tucker Higgins at CNBC.

In Franchise Tax Board of California v. Hyatt, also by a 5-4 vote, the court overruled a 40-year-old precedent, Nevada v. Hall, and held that a state cannot be sued in the courts of another state without its consent. David Savage reports for the Los Angeles Times that the “ruling is both a win for the California Franchise Tax Board and a victory for the conservative principle of state ‘sovereign immunity.’” For The Wall Street Journal, Jess Bravin reports that the decision “may be more significant if it signals that the court’s conservative majority, reinvigorated by two Trump appointees, is ready for a searching reassessment of constitutional law that could result in more precedents being overturned.” Tony Mauro reports for The National Law Journal (subscription or registration required), that in his dissent, “Justice Stephen Breyer … warned that his colleagues may be poised to overturn court precedents in upcoming cases in ways that will sow ‘increased uncertainty’ about the court’s consistency.” Additional coverage comes from Kimberly Robinson at Bloomberg Law and Bill Lucia at Route Fifty.

In the last decision of the day, a unanimous court held in Cochise Consultancy v. United States, ex rel. Hunt that a provision of the False Claims Act that stops the clock on the period for filing suit until relevant facts are discovered applies to private parties in cases in which the government has not intervened. Mark Walsh analyzes the opinion for this blog. Daniel Seiden reports at Bloomberg Law that “[t]he ruling affirmed that a whistleblower pursuing an FCA case on behalf of the government enjoys the same amount of time to file a case as the government would have if acting alone or in concert with the whistleblower.” At Law360 (subscription required), R. Scott Oswald writes that the opinion “showed again that the justices aren’t easily tempted to undermine the central purpose of the FCA since it was signed into law by President Abraham Lincoln in 1863: Holding fraudsters accountable when they pick the public pocket.” [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.]

The justices also issued orders yesterday from last week’s conference; they did not add any new merits cases to their docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Education Week’s School Law Blog, Mark Walsh reports that the justices “declined to hear the appeal of a private religious school in a zoning fight with an Ohio municipality” and “refused to take up a case about whether [the Supreme Court’s] key precedent evaluating First Amendment retaliation claims by public employees applies to a claim alleging retaliation based on an worker’s association with a public-sector union.” At Greenwire (subscription required), Pamela King reports that a “coalition of trade groups lost its bid to fight Oregon’s low-carbon fuel program before the nation’s highest bench, as the Supreme Court today rejected the groups’ petition and declined to review two other energy-related cases.” At the Constitutional Law Prof Blog, Ruthann Robson looks at a dissent by Justice Samuel Alito from denial of review in a case in which the lower court had upheld a prisoner’s First Amendment challenge to a prison’s refusal to process a grievance because of its content.

Amy Howe reports for this blog that “[t]ensions over the death penalty resurfaced [yester]day at the Supreme Court.” At NPR, Nina Totenberg unpacks the “highly unusual … explanatory statements from the court’s conservatives as to why they reached such apparently contradictory decisions in two death cases in February and March.” Additional coverage comes from Jess Bravin at The Wall Street Journal, who reports that “it was extraordinary for Justice Samuel Alito to publish an opinion Monday disclosing his previously unknown vote in March to deny a stay of execution, prompting Chief Justice John Roberts to reveal his own vote on the other side.” Commentary comes from Kent Scheidegger at Crime & Consequences.


  • In the latest episode of SCOTUStalk, John Elwood joins Amy Howe to talk about cert petitions at the Supreme Court.
  • At Greenwire (subscription required), Ellen Gilmer reports that, in its merits brief in County of Maui, Hawaii v. Hawaii Wildlife Fund, which asks whether the Clean Water Act covers pollution that moves through groundwater before reaching a federal waterway, “Maui County is appealing to conservative Supreme Court justices’ trademark textualism in a bid to nail down limits on the scope of federal water protections.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (May. 14, 2019, 7:08 AM),