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Monday round-up

On Friday the justices released four more opinions, leaving 12 to be decided before the Supreme Court’s summer recess. In Flowers v. Mississippi, the case of Curtis Flowers, who was tried six times for the same murders, the justices held 7-2 that a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At The Economist’s Democracy in America blog, Steven Mazie writes that “the majority opinion in Flowers, penned by Justice Brett Kavanaugh, stretched to 31 pages but, as it said, broke ‘no new legal ground.’” Nina Totenberg reports for NPR that “the Supreme Court made clear that in making its decision it could not ignore the history of this case and its prosecutor.” For The Wall Street Journal, Jess Bravin reports that Justice “Clarence Thomas, the court’s only African American, filed a furious dissent, dismissing the ruling as a feel-good exercise that pandered to media interest in the case and exhibited its own bias—against state courts in the South.” Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog.

In Knick v. Township of Scott, Pennsylvania, the justices, by a 5-4 vote, overruled a 34-year-old precedent that required property owners to follow state compensation procedures before bringing federal takings claim under the Constitution. Miriam Seifter analyzes the opinion for this blog. Brent Kendall and Jess Bravin report for The Wall Street Journal that the ruling “made it easier for property owners to challenge land-use regulations and seek compensation from the government, [and it] revealed deep divisions between the court’s conservative and liberal camps.” At The New York Times, Adam Liptak reports that “[t]he decision was notable for an exchange about the court’s attitude toward precedent.” Nina Totenberg reports at NPR that “[t]he decision, with all five of the court’s conservatives in the majority, may have particular effects in cities and coastal areas that have strict regulations for development.” Additional coverage comes from Ellen Gilmer at E&E News and Tony Mauro at Commentary comes from Nick Sibilla in an op-ed for Forbes and from Ruthann Robson at the Constitutional Law Prof Blog.

In Rehaif v. United States, the court held 7-2 that to convict a defendant in U.S. illegally for violating a federal gun-possession law, prosecutors must show that defendant knew he was in the country illegally. Evan Lee has this blog’s opinion analysis. Trialdex observes that “it is pretty clear that Rehaif will apply to the much more common ex-con in possession cases.”

And in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices ruled unanimously that a trust beneficiary’s residence is not sufficient under the due process clause for a state to assert tax jurisdiction over undistributed trust income. This blog’s opinion analysis comes from Erin Scharff. At the Constitutional Law Prof Blog, Ruthann Robson writes that “[t]he Court’s conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee.” Mark Walsh has an first-hand look at Friday’s opinion announcements for this blog.

At The Federalist, Ilya Shapiro asserts that The American Legion v. American Humanist Association, in which the court held 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, reached “the correct result …, but the mish-mash of opinions—it took a paragraph to explain which justice was joining which aspect of the decision—leaves Establishment Clause jurisprudence in the muddled state it’s been for decades.” At the Duke Center for Firearms Law’s Second Thoughts blog, Darrell Miller wonders about the implications of the ruling for “firearm regulations that are about as old, or much, much older” than the 90-year-old cross. At The Interdependent Third Branch, Lawrence Friedman pushes back against Justice Neil Gorsuch’s suggestion in a concurrence that the plaintiffs did not have had standing to challenge the cross, arguing that “abandoning ‘offended observer’ standing in the Establishment Clause context would … mean that public displays that obviously violate the constitution would become more common.” Additional commentary comes from Jay Wexler in an op-ed for Newsweek and from Lisa Soronen for the Council of State Governments’ Knowledge Center blog. [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.]

Also at Notice & Comment, Adrian Vermeule throws cold water on predictions of an impending revival of the nondelegation doctrine after Gundy v. United States, noting that “[i]n many ways, Gundy represented the easiest possible case for constitutional invalidation, … yet, even here, the Court’s uniform practice of rejecting nondelegation challenges held.” At Take Care, Gillian Metzger remarks that in Gundy, “Chief Justice Roberts joined an extreme [dissenting] opinion that threatens to disrupt a basic and longstanding feature of modern government, unnecessarily undercuts a co-equal branch’s ability to function, and clearly advances a strongly partisan anti-regulatory agenda”; she warns that “if Gundy is any sign of things to come, John Roberts the institutionalist has left the building.” In an op-ed for Forbes, Nick Sibilla argues that “[b]y upholding [the] broad delegation of power [in the federal sex-offender registration act], the Supreme Court has set a precedent for even greater federal criminalization, which is already—quite literally—incalculable.” Additional commentary on Gundy comes from Ilya Somin at Reason’s Volokh Conspiracy blog and Rick Hills at PrawfsBlawg.

At his eponymous blog, Sheldon Nahmod explains that after McDonough v. Smith, in which the court held 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, “[i]t is … crucial that a section 1983 plaintiff identify with some specificity just what is challenged as unconstitutional and under what constitutional provision.” At Reason’s Volokh Conspiracy blog, Jonathan Adler writes that “McDonough is potentially important because it makes it easier for criminal defendants to sue police or prosecutors who engage in misconduct against them.” Another look at the decision comes from Lisa Soronen at the Council of State Governments’ Knowledge Center blog.

Opening Arguments (podcast) “break[s] down the Supreme Court’s 7-2 ruling in U.S. v. Gamble, affirming the “dual sovereignty” doctrine.” At Jost on Justice, Kenneth Jost looks at Thomas’ concurring opinion in Gamble, in which Thomas asserted that “the Supreme Court is constitutionally bound to give a precedent no weight whatsoever if the prior decision is, in his 20-20 hindsight, ‘demonstrably erroneous.’” Dan Cotter looks at last week’s decisions in a post at LinkedIn.

At, Tony Mauro reports that “[m]embers of Congress on Friday explored ways to increase transparency and accountability of the federal judiciary, though some voiced concern that reforms could jeopardize the security of judges and the unique status of Supreme Court justices.” At Bloomberg Law, Patrick Gregory reports that “[s]cholars raised concern … about a #MeToo-inspired congressional proposal for a code of ethics for U.S. Supreme Court justices.”


  • At Howe on the Court, Amy Howe highlights the 12 remaining cases the justices will dispose of before the end of the term.
  • Christopher Walker has this blog’s analysis of Monday’s opinion in PDR Network, LLC v. Carlton & Harris Chiropractic Inc.; the court sent the case, 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.
  • At, Tony Mauro reports that “[f]ormer U.S. solicitors general Theodore Olson and Donald Verrilli Jr. are set to square off before the U.S Supreme Court in October to resolve a complex dispute over the status of an oversight board established by Congress in 2016 to help Puerto Rico recover from a devastating financial crisis.”
  • At the Yale Journal on Regulation’s Notice & Comment blog, Bernard Bell discusses last week’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, suggesting that “[w]hether or not private entities sometimes or even often serve [a] ‘traffic cop’ role in government-created fora, serving in that role shouldbe a function exclusively exercised by entities, be they public or private, having governmental responsibilities,” notably, “the duty to act in conformance with the U.S. Constitution.”
  • At Irish Liquor Lawyer, Sean O’Leary wonders whether, in Tennessee Wine & Spirits Retailers Association v. Thomas, a challenge to Tennessee’s durational residency requirements for liquor licensing, the decision [will] be narrow and limited to the facts of the case,” or will “shake[] the liquor world to its core.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jun. 24, 2019, 6:55 AM),