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Wednesday round-up

Yesterday the Supreme Court issued three opinions. Mark Walsh has a “view” from the courtroom for yesterday’s session, which included the traditional presentation of Attorney General William Barr to the court.

In Nieves v. Bartlett, the court ruled that a plaintiff’s First Amendment retaliatory-arrest claim failed because police officers had probable cause to arrest him. Howard Wasserman has this blog’s opinion analysis. Additional coverage comes from Robert Barnes of The Washington Post, Jordan S. Rubin of Bloomberg Law and Jess Bravin of The Wall Street Journal, who reports that “[s]ome justices would have gone further still to protect First Amendment expression from police retaliation.” Lisa Soronen discusses the opinion at the Council of State Governments’ Knowledge Center blog.

In Home Depot U.S.A. Inc. v. Jackson, the court held, in an opinion by Justice Clarence Thomas, that neither of two removal provisions in federal law permit a third-party counterclaim defendant to remove a class-action claim from state to federal court. Coverage comes from Jon Hill of Law360, Brandi Buchman of Courthouse News Service and Tony Mauro of the The National Law Journal (registration may be required), who reports that the “rare pro-consumer ruling in a class action was even more unusual because of the uncommon allies who joined Thomas: liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.” Subscript Law offers a graphic explainer for the decision. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case.]

In Smith v. Berryhill, the court unanimously held that a Social Security Administration Appeals Council dismissal on timeliness grounds of a request for review after a claimant has had an administrative law judge hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under 42 U.S.C. § 405(g). Kathryn Moore has this blog’s analysis. Additional coverage comes from Emily Brill of Law360.

Yesterday the justices also issued orders from last Thursday’s conference. In Box v. Planned Parenthood, the justices summarily reversed a lower court’s decision striking down an Indiana law with respect to a provision relating to the disposition of fetal remains by abortion providers but left the decision in place with respect to a provision barring abortions based on the disability, sex or race of the fetus. Amy Howe has this blog’s coverage, which originally appeared at Howe on the Court. Additional coverage comes from Nina Totenberg and Domenico Montanaro of NPR (Totenberg also has audio coverage), Jess Bravin of The Wall Street Journal, Kevin Daley of The Daily Caller, Adam Liptak of The New York Times, Robert Barnes of The Washington Post and David Savage of Los Angeles Times, who calls the decision “a mixed result that clearly signaled the conservative majority is not ready to reconsider the right to abortion set in Roe vs. Wade.” Joan Biskupic of CNN reports that “Ginsburg warned on Tuesday about a threat to abortion rights and demonstrated that she is not going quietly on any abortion-related compromise. Ginsburg, in fact, has shown in recent weeks that she is not going quietly on much.”

Commentary on Box comes from Garrett Epps of The Atlantic, Margaret Drew at the Human Rights At Home Blog, Michael Dorf at his eponymous blog, Nicole Russell in an op-ed at Washington Examiner, Damon Linker at The Week and Carliss Chatman in an op-ed at CNN. At The Guardian, Sabrina Siddiqui looks more broadly at “a slew of state laws barring access to abortion [that] have thrust the issue into the national spotlight and set up a potential court battle that could hold consequences for an entire generation.”

The justices agreed to hear oral argument next term in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border. Coverage comes from Kevin Daley of The Daily Caller, Adam Liptak of The New York Times, Robert Barnes of The Washington Post and Howard Fischer of Capitol Media Services (via, who reports that “whatever the justices rule also will determine whether Araceli Rodriguez can pursue her claim in federal court in Arizona following the 2012 shooting death of her son.”

At Education Week’s School Law Blog, Mark Walsh covers the justices’ denial of review in Doe v. Boyertown Area School District, the “appeal of a group of students who object to a Pennsylvania school district’s policy of permitting transgender students to use restrooms or locker rooms consistent with their gender identity.” Tony Mauro of The National Law Journal covers the justices’ denial in a “high-profile case involving the suicide of a Reed Smith partner in 2010.”


  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery chats with Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit about Millett’s “record-breaking career in the Solicitor General’s Office, how she got into Tae Kwon Do, and what it was like watching her former colleague Brett Kavanaugh endure a brutal Supreme Court confirmation.”
  • In an op-ed for Forbes, Corbin Barthold outlines “four things to look for” in the court’s forthcoming decision in Kisor v. Wilkie, in which the justices are considering whether to overrule precedents that require courts to defer to a federal agency’s reasonable interpretation of its own regulations.
  • In an op-ed for the Washington Examiner, Adam Carrington looks at “some of the biggest cases” left to be decided this term “and what big principles are at stake in them.”
  • At his Irish Liquor Lawyer blog, Sean O’Leary looks at a Michigan law regulating out-of-state wine retailers that is currently stayed pending the outcome of Tennessee Wine & Spirits Retailers Association v. Blair, in which the justices are considering whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.

Recommended Citation: Andrew Hamm, Wednesday round-up, SCOTUSblog (May. 29, 2019, 10:15 AM),