Thursday round-up

Yesterday the Supreme Court issued three opinions, and Chief Justice John Roberts announced that the term will end today; five cases remain to be decided, including cases involving partisan gerrymandering and the government’s decision to add a question about citizenship to the 2020 census. In Kisor v. Wilkie, the court left in place prior precedent holding that courts should defer to an administrative agency’s reasonable interpretation of its own genuinely ambiguous regulation; the justices agreed unanimously to wipe out the judgment of the lower court, but they disagreed 5-4 about whether the precedent should be overruled. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. Kalvis Golde rounded up early coverage of and commentary on the opinion for this blog. Subscript Law has a graphic explainer for the decision. At NPR, Nina Totenberg reports that “Justice Elena Kagan writing for the majority reaffirmed the importance of deferring to agency expertise[, b]ut she also limited the deference in specific ways.” At The Daily Caller, Kevin Daley writes that “many legal conservatives cast Wednesday’s decision as a victory,” “[y]et the fact remains that Auer survived a direct attack despite sure predictions of its demise, ensuring its continued viability for the foreseeable future.”

In United States v. Haymond, the justices voted 5-4 to invalidate a federal law requiring a defendant registered as sex offender to return to prison for at least five years if federal judge finds that the defendant violated terms of his supervised release. This blog’s opinion analysis comes from Amy Howe, in a post that first appeared at Howe on the Court. Jacqueline Thomsen reports for The Hill that “Justice Neil Gorsuch joined with the court’s liberal bloc on Wednesday to rule … against [the] statute, finding it violated a sex offender’s constitutional right to a trial by jury.” At Reuters, Lawrence Hurley reports that “[i]n dissent, conservative Justice Samuel Alito appeared alarmed that the court might in a future case endanger the entire concept of supervised release.” At Crime & Consequences, Kent Scheidegger writes that “[a] broad attack on supervised release revocations would indeed be a grave concern,” and that although “[t]he direct effects of [yester]day’s decision are not severe, … future developments warrant monitoring.”

Finally, in Tennessee Wine & Spirits Retailers Association v. Thomas, the court held 7-2 that the Constitution bars states from imposing residency requirement for liquor licenses. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. For The Wall Street Journal, Brent Kendall and Jess Bravin report that “[t]he case required the court to consider whether the 21st Amendment, which repealed Prohibition and granted states wide latitude to regulate alcohol, is limited by a constitutional doctrine that bars states from interfering with interstate commerce,” and that “[c]ommerce won out.” Nina Totenberg and Domenico Montanaro report for NPR that “[t]he practical effect of the decision will be that more big-box competitors are likely to move into the state, forcing some local stores out of business[, b]ut liquor prices may go down, and there will be more product choices for consumers.” Lisa Sorenen discusses the opinion at the Council of State Governments’ Knowledge Center blog. Mark Walsh has a courtside view of yesterday’s opinion announcements for this blog.

At PatentlyO, Christine Farley explains that Monday’s decision in In Iancu v. Brunetti, in which the court held that a federal ban on the registration of “immoral” or “scandalous” trademarks violates the First Amendment, “does pave a path forward for amending the Lanham Act to add a bar to the registration of marks that are ‘scandalous in their mode of expression,’ or are ‘vulgar, lewd, sexually explicit, or profane.’” At Justia’s Verdict blog, Michael Dorf argues that “[i]f Congress accepts the invitation to rewrite the Lanham Act to forbid trademark registration of profanity as such, the Court should close the door it left open in Iancu[:] Profanity can coarsen our public discourse, but regulating it risks still greater damage.”

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that in their latest filing, the challengers in Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, “urged the justices to deny what [they] characterized as the government’s ‘extraordinary request’” that the court decide a question raised by new evidence in another case: “whether Ross intended to discriminate against Hispanics” when he added the question. At Balkinization, Neil Siegel implores the justices not to “’just look away’” from the real motivations behind the decision.

Briefly:

• At Bloomberg Law, Kimberly Robinson reports that “[c]ourt watchers on the left are bracing for ideological opinions by the Supreme Court’s fortified conservative majority, but this term the liberal justices have gained the vote of one of their more conservative colleagues for victories in several closely divided cases.”
• At Pensions & Investments, Hazel Bradford notes that on Monday the court asked “for the opinion of the U.S. solicitor general on whether it should consider a petition from the Roman Catholic Archdiocese of San Juan, Puerto Rico, to decide if courts can override a religious organization’s legal structure and force affiliates to face joint and several pension liability as a single entity.”
• At American Thinker, Thomas Wheatley weighs in on 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, observing that “[t]hose favoring the cross’s continued existence (like me) may be cheering this case’s outcome, but if Establishment Clause law was confusing before, it is now downright baffling.” [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.]
• At Take Care, Gregory Lipper worries that in Gundy v. United States, “[t]he Court’s four more liberal members traded away the rights of vulnerable people required to register as sex offenders, and did so to preserve the power of administrative agencies to wield delegated power[, b]ut the opinions themselves suggest that agency power remains on the chopping block—just not in a case involving this class of people.”

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