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Wednesday round-up

Richard Re analyzes Monday’s opinion in Franchise Tax Board of California v. Hyatt, in which the court overruled a 40-year-old precedent and held that a state cannot be sued in the courts of another state without its consent, for this blog. At The NCSL Blog, Lisa Soronen observes that Justice Clarence “Thomas spent a mere page explaining why a majority of the justices were rejecting stare decisis (let the decision stand) in this case.” Howard Wasserman writes at PrawfsBlawg that “[t]here is no textual basis for” the court’s holding; “the majority instead relies on what is implicit in the structure and the ‘implicit ordering of relationships within the federal system.’” In an op-ed for The New York Times, Leah Litman warns that “Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it[:] That should raise alarm bells about Roe[v. Wade], particularly as states enact draconian restrictions on abortion.” At Reason’s Volokh Conspiracy blog, Stephen Sachs suggests that although “Hyatt is an unfortunate opinion—not just because some of its reasoning might be questioned, but because it makes the job of defending originalist doctrine harder,” “it may have a silver lining: encouraging a slow, possibly generational shift in legal conservatives’ position on the common law.”

At The Committee for Justice blog, Ashley Baker writes that “many of the initial reactions”  to Monday’s decision in Apple v. Pepper, in which the 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, “are either misplaced or overblown,” because the decision “did not address the central question of whether the App Store violates antitrust law, nor did it address the broader irrelevant question of whether Apple is a monopoly.” At the Cato Institute’s Cato at Liberty blog, Walter Olson writes that “[t]he wider worry … is that the majority (significantly joined by [Justice Brett] Kavanaugh) did not merely resolve a technical puzzle about how the law’s language applies to an unusually designed supply chain, but seemed inclined along the way to adopt an ungenerous and narrow reading” of a prior case that “serves as a major check against runaway litigation.” At PrawfsBlawg, Howard Wasserman remarks on the “strategic” decision of Justice Ruth Bader Ginsburg to assign the opinion to Kavanaugh, “the unexpected member of the majority.”


  • In an op-ed for The Atlantic, adapted from his new memoir, retired Justice John Paul Stevens asserts that “District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.”
  • In a Q & A with Isaac Chotiner at The New Yorker, Linda Greenhouse discusses recent state-law restrictions on abortion, suggesting that “the challenge to Roe will come with ostensibly milder measures that will let the courts find cover in seeming not to be extreme,” such as the Louisiana law requiring doctors providing abortions to have admitting privileges at nearby hospitals that is the subject of the pending cert petition in June Medical Services v. Gee.
  • At SCOTUS OA, Tonja Jacobi and Matthew Sag write that “an analysis of justice to justice interruptions from the 2018 Term suggests” that the “gender imbalance in the rate of interruptions of female justices versus male justices” has been reduced.
  • Subscript Law offers a graphic explainer for Monday’s decision in Cochise Consultancy v. United States, ex rel. Hunt, which held 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. [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.]

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (May. 15, 2019, 7:06 AM),