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Tuesday round-up

Yesterday the Supreme Court issued three opinions. In Herrera v. Wyoming, the court held 5-4 that the Crow Tribe did not lose its rights under an 1868 treaty to hunt on unoccupied federal lands when Wyoming became a state, and that establishment of a national forest did not make land within the forest categorically “occupied.” Gregory Ablavsky has this blog’s opinion analysis. Domenico Montanaro and Nina Totenberg report for NPR that “Justice Neil Gorsuch, the only Westerner on the court, provided the decisive vote in this case, showing himself again to be sensitive to Native American rights.” At Greenwire (subscription required), Ellen Gilmer reports that the ruling is “a rare win for tribes at the Supreme Court.” Additional coverage comes from Kevin Daley at The Daily Caller and Jess Bravin for The Wall Street Journal. Brian Pierson discusses the decision at The National Law Review.

In Merck Sharp & Dohme v. Albrecht, the justices ruled unanimously that whether the FDA would not have approved a proposed change to a prescription drug label, pre-empting a state-law claim for failure to warn of the drug’s risks, is a question of law for a judge to decide. Jess Bravin reports for The Wall Street Journal that “[t]he court agreed with Merck that juries are less suited than judges to decide often technical questions of whether the Food and Drug Administration was provided sufficient information and refused to approve changes to the drug’s warning label regarding potential injuries,” but “the majority opinion, written by Justice Stephen Breyer, suggested Merck may have a difficult time proving its position before a judge,” while “[t]hree conservative justices disputed that implication in a concurrence that construed the facts more in sympathy with” Merck. Additional coverage comes from Jessica Gresko at AP.

In Mission Product Holdings Inc. v. Tempnology LLC, the court held 8-1 that when a debtor in bankruptcy rejects a contract that included a license to use trademarked material, the rejection breaches the contract, rather than rescinding it, so that the other party retains its rights under the license. At Law360 (subscription required), Bill Donahue and Alex Wolf report that the decision settles “a circuit split that had been called ‘the most significant unresolved legal issue in trademark licensing.’” [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 Law & Crime, Jerry Lambe notes that “President Donald Trump’s two appointments to the bench, [Justices Brett] Kavanaugh and … Neil Gorsuch, disagreed on” all three of yesterday’s decisions. At Reason’s Volokh Conspiracy blog, Jonathan Adler notes that “[t]hese splits do not really show one of the Court’s newest justices as being more ‘conservative’ than the other, but they do suggest meaningful differences in method and underlying jurisprudence.”

The justices also issued orders from last Thursday’s conference, granting a bankruptcy case, Ritzen Group Inc. v. Jackson Masonry, LLC, in which the court will decide whether an order denying a creditor’s motion to lift an automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal. 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 take up a case involving the warrantless strip-search at school of a 4-year-old student by a county caseworker looking for evidence of abuse.”

At Greenwire (subscription required), Ellen Gilmer reports that local government officials in Hawaii met yesterday “to consider environmental groups’ settlement offer” 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, noting that “[i]f the local leaders ultimately decide to settle the case, they will withdraw their appeal and eliminate the high court’s main opportunity to address the scope of the landmark environmental law.” Lisa Soronen discusses the case at the Council of State Governments blog.

At Bloomberg Law, Kimberly Robinson reports that “[r]etired Justice Anthony Kennedy lamented the state of civic discourse May 20 while speaking to a room full of prominent attorneys and judges.” Andrew Hamm covers Kennedy’s remarks for this blog.


  • In this week’s episode of SCOTUStalk (podcast), Amy Howe talks to Tom Goldstein and David Savage “about abortion and recent legislation aimed at overturning Roe v. Wade.”
  • At Sentencing Law and Policy, Douglas Berman, channeling Samuel Beckett, wonders why the court is taking so long to decide Gundy v. United States, which asks whether a provision of the federal sex-offender act violates the nondelegation doctrine.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (May. 21, 2019, 6:51 AM),