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Friday round-up

The court issued opinions in four cases yesterday, and the justices will return to the bench this morning for more opinion announcements. In The American Legion v. American Humanist Association, the court held 7-2 that a 40-foot cross honoring World War I veterans on public land in Maryland does not the violate Constitution’s bar on establishing religion. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Jon Levitan rounded up early coverage of and commentary on the decision for this blog.

Nina Totenberg and Domenico Montanaro report for NPR that “[t]he decision was 7 to 2, but it had multiple parts and not all of the seven agreed on every aspect.” Jess Bravin reports for The Wall Street Journal that “the case drove home the divides not only between conservatives and liberals but within both of the court’s ideological wings.” At Education Week’s School Law Blog, Mark Walsh reports that the court “stopped short of overruling the so-called Lemon test for evaluating government interaction with religion.” Additional coverage comes from Bill Lucia at Route Fifty  and Kevin Daley at The Daily Caller,

At The Economist’s Democracy in America blog, Steven Mazie writes that “Justice Samuel Alito, author of the plurality opinion,” and Justices Stephen Breyer, Elena Kagan and Brett Kavanaugh, “along with Chief Justice John Roberts, formed partially overlapping Venn diagrams that save the Bladensburg cross with a narrow and historically nuanced justification.” At Rewire.News, Andrew Seidel argues that, after “seven separate opinions, concurrences and dissents, 87 pages, and odd bedfellows in a fractured, scattershot ruling,” “[a]nly one thing is clear: the justices added no clarity to this area of the law.” The editorial board of The Wall Street Journal argues that “[t]he best result for liberty and public civility would be if the full Court took the advice of Justices Gorsuch and Thomas, who also argued that Americans merely offended by religious speech or displays lack the standing to sue because they haven’t suffered a ‘concrete and particularized injury.’” At PrawfsBlawg, Howard Wasserman observes that “[i]f Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim.” Additional commentary comes from Leslie Griffin at Justia’s Verdict blog and Garrett Epps at The Atlantic. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case.]

In Gundy v. United States, the court ruled 5-3 to affirm a lower-court judgment finding that, in the Sex Offender Registration and Notification Act, Congress properly delegated authority to the U.S. attorney general to apply the law’s registration requirements. Mila Sohoni analyzes the opinion for this blog. For The New York Times, Adam Liptak reports that “[t]he case had been closely watched because it could have given the court a chance to reconsider the fundamental constitutional question of how much authority Congress can delegate to the executive branch”; “the court ultimately ducked the question, but only after what appeared to have been a considerable and extended struggle.” Jess Bravin reports for The Wall Street Journal that, “[w]riting for the plurality, Justice Elena Kagan said Congress was within its power to delegate the matter to the official charged with implementing the law.” At NPR, Nina Totenberg reports that “[t]here was a landmine in the decision[: …] With the fifth vote, Justice Samuel Alito said that if a majority of the court were willing to re-examine a its long-held position, he might be willing to do the same.” At The Daily Caller, Kevin Daley reports that “Gorsuch took Alito’s concurrence to mean that he might vote the other way when a similar dispute is next heard by the high court.” Additional coverage comes from Ellen Gilmer at Greenwire (subscription required).

The justices ruled 6-3 in McDonough v. Smith that the clock on the time to file a federal civil rights claim based on fabrication of evidence in criminal proceedings does not start to run until the criminal proceedings end in the claimant’s favor. This blog’s opinion analysis comes from Howard Wasserman.

And the justices voted unanimously to send PDR Network, LLC v. Carlton & Harris Chiropractic Inc., which asks whether the Hobbs Act, a jurisdictional-channeling statute, requires courts to accept the FCC’s interpretation of a statute allowing recipients of “junk faxes” to sue the senders for damages, back for the lower court to resolve two preliminary questions. Mark Walsh has a “view” from the courtroom of all yesterday’s opinion announcements for this blog. At Howe on the Court, Amy Howe updates her predictions about which justices may be writing which of the remaining 16 opinions.

The court also agreed yesterday to review a group of consolidated cases that ask whether the members of Puerto Rico’s Financial Oversight and Management Board were appointed in violation of the Constitution’s appointments clause, and, if so, whether the board’s decisions should be invalidated; the cases will be heard in October. Amy Howe reports on the grants for this blog, in a post that first appeared at Howe on the Court.


  • At CNN, Joan Biskupic decodes the justices’ language this term about “the value of precedent, or ‘stare decisis,’ meaning adherence to past cases,” noting that “their differing approaches to precedent are likely to emerge in several cases to be decided in the next week — including on partisan gerrymandering, the reach of federal regulatory power and whether the Trump administration can add a question about citizenship to the 2020 census.”
  • The NFIB blog urges the justices to review “a lawsuit that Arizona filed against California over extraterritorial taxation,” arguing that “the Court needs to delineate California’s power over individuals and businesses operating in other jurisdictions.”
  • The editorial board of The Wall Street Journal observes that Monday’s decision in Manhattan Community Access Corp. v. Halleck, in which the court held that a private nonprofit that runs a public-access TV channel can’t be sued for violating the First Amendment, “provides useful constitutional clarity to the debate over speech regulation on tech platforms,” noting that “[t]he First Amendment protects against state restrictions on speech, but it also protects the private right to restrict speech.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast,” fellow Heritage scholar Cully Stimson joins Elizabeth Slattery to highlight recent opinions[:] From the Bladensburg Peace Cross to nondelegation to redistricting, things are finally getting interesting.”
  • At E&E News, Ellen Gilmer writes that the court’s recent grant in In Atlantic Richfield Co. v. Christian, which asks whether federal law pre-empts state-law claims for clean-up of hazardous waste beyond what the EPA had ordered, “is causing heartburn among Superfund experts, who caution the case could have unintended consequences.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Jun. 21, 2019, 6:58 AM),