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Tuesday round-up

Yesterday the justices continued to chip away at their merits docket for this term, issuing four opinions; they will return to the bench on Wednesday at 10:00 a.m. to hand down rulings in some of the eight cases remaining. In Iancu v. Brunetti, the court held 6-3 that a federal ban on the registration of “immoral” or “scandalous” trademarks violated the First Amendment. Megan Carpenter has this blog’s opinion analysis. Andrew Chung reports at Reuters that “[a]ll nine justices agreed in the decision written by liberal Justice Elena Kagan that the prohibition on ‘immoral’ trademarks ran afoul of the … First Amendment right to free expression,” but “three justices wrote dissents to say the bar on ‘scandalous’ trademarks should have been upheld.” At The Daily Caller, Kevin Daley reports that “Monday’s decision was the second time the Supreme Court struck down a Lanham Act provision on free speech grounds since 2017.” Jess Bravin reports for The Wall Street Journal that “the court left open an opportunity for Congress to write a less sweeping restriction on trademark registration.” Additional coverage comes from Tony Mauro for The National Law Journal and David Savage for the Los Angeles Times, who reports that “[d]espite Monday’s ruling, it is not clear how the court will judge a trademark that uses profanity.” Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog, Howard Wasserman in two posts at PrawfsBlawg, here and here, and Erica Goldberg at In a Crowded Theater.

The justices held 5-4 in United States v. Davis that the definition of “crime of violence” in the context of federal criminal prosecutions involving firearms is unconstitutionally vague. Leah Litman analyzes the opinion for this blog. Ann Marimow reports for The Washington Post that the court ruled that “[a]s written, the statute provides no reliable way to determine which offenses qualify as ‘crimes of violence.’” For the Los Angeles Times, David Savage reports that “[t]he dispute highlights a sharp difference between President Trump’s two appointees[:] Gorsuch is a libertarian who is skeptical of the government, and Kavanaugh is a more traditional law-and-order conservative.” Kevin Daley notes for The Daily Caller that “Gorsuch has joined his liberal colleagues to strike down vague statutes before.” At Take Care, Litman identifies some “procedural obstacles” that defendants seeking to benefit from the decision might face. At Balkinization, Rick Pildes maintains that “Justice Gorsuch’s majority opinion … in Davis, striking down a federal criminal statute as unconstitutionally vague, bears a close relationship, which is likely to be missed, to his dissenting opinion last week on the delegation doctrine in the Gundy case.”

In Food Marketing Institute v. Argus Leader Media, the court held 6-3 that, when commercial or financial information is treated as private by its owner and given to the government with an assurance of privacy, that information is “confidential” under Exemption 4 to the Freedom of Information Act. This blog’s opinion analysis comes from Mark Fenster. At CNN, Ariane de Vogue and Steve Vladeck report that the court’s broad reading of the exemption “came in a case concerning food stamps, in which a South Dakota newspaper had sought data from the Department of Agriculture on the number of stores participating in the federal food stamp program, and store-by-store data on the amount of purchases made using food stamps.” Tony Mauro reports for The National Law Journal that the case is a “win for business advocates, [making]  it easier for the federal government to prevent companies’ financial information from being released to the public under the federal Freedom of Information Act.”

And in The Dutra Group v. Batterton, the justices ruled 6-3 that punitive damages are not available in a case alleging breach of the general maritime duty to provide a seaworthy vessel. Joel Goldstein has this blog’s opinion analysis. Mark Walsh has a “view” from the courtroom for this blog. At Reason’s Volokh Conspiracy blog, Jonathan Adler remarks on the “startling degree of agreement between Justices Gorsuch and Kagan” in yesterday’s opinions.

The justices also issued orders from last week’s conference, adding eight cases to their merits docket for next term, for a total of five hours of oral argument, and asking for the views of the solicitor general in two cases. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that the court agreed to decide next term “whether the federal government was entitled to break a promise to shield insurance companies from some of the risks they took in participating in the exchanges established by President Barack Obama’s health care law, the Affordable Care Act.” At NPR, Domenico Montanaro and Nina Totenberg report that the court also “ordered documents unsealed Monday in a death penalty case out of Alabama after a motion was filed by the Reporters Committee for Freedom of the Press and NPR.”

In an op-ed for The Wall Street Journal, David Rivkin and Lee Casey welcome “Justice Samuel Alito’s lone concurrence” in Gundy v. United States, in which the court upheld the federal sex-offender registration act against a nondelegation challenge, which they say “suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.” At PrawfsBlawg, Rick Hills follows up on a previous post on Gundy, explaining why he thinks the nondelegation doctrine “will never have real bite.”


  • At Howe on the Court, Amy Howe updates her increasingly educated guesses about which justices may be writing which majority opinions in the remaining cases.
  • For The New York Times, Adam Liptak and Jason Kao highlight “some of the term’s most important cases, ones that will help chart the future of a court in transition.”
  • At Take Care, Robert Tuttle and Ira Lupu expand on a previous post for this blog 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; they argue that the majority “opinion appears to be sheer rationalization, in the worst meaning of that word.” [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 Reason’s Volokh Conspiracy blog, Jonathan Adler observes that “[i]t is certainly possible that the Roberts Court, with what appears to be a firm conservative majority, may be willing to overturn precedents at a rapid clip, but that has not been the Court’s record thus far.”
  • For The New York Times, Evan Thomas reviews “Confirmation Bias,” a new book about recent Supreme Court confirmations.
  • At the Brennan Center, Andrew Cohen writes that the Supreme Court’s decision last week in Flowers v. Mississippi, in which the justices held that a prosecutor’s repeated use of peremptory challenges to remove black people from the jury pool violated the Constitution, “says less about the seven justices who did the right thing than it does about the broken justice system that brought the case to them in the first place.”
  • The editorial board of The Wall Street Journal suggests that last week’s decision in Knick v. Township of Scott, Pennsylvania, in which the justices overruled a precedent that required property owners to follow state compensation procedures before bringing federal takings claim under the Constitution, shows that “[t]he Supreme Court’s first term with a new majority is proving to be far more consequential than many Court-watchers anticipated, and in a good way.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jun. 25, 2019, 6:58 AM),