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Monday round-up

On Friday the Supreme Court issued its last orders for October Term 2018, agreeing to review 13 cases for a total of 11 hours of oral argument next term, including three consolidated cases in which the Trump administration is appealing lower-court orders that blocked its decision to end the Obama-era “Deferred Action for Childhood Arrivals” program, which allowed immigrants brought to this country illegally as children to apply for protection from deportation. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Fox News, Shannon Bream and Bill Mears report that “[a] ruling [in the DACA case] is expected in the presidential election year, putting the high court at the center of one of the most politically charged issues.” For The Wall Street Journal, Brent Kendall and Louise Radnofsky report that “[t]he Trump appeal had sat in an unusual Supreme Court limbo for the past six months, as the justices repeatedly put off any action—a signal they weren’t eager to take the case.” Additional coverage comes from Mark Walsh at Education Week’s School Law Blog and Nina Totenberg and Domenico Montenaro at NPR, who report that “[w]hile public approval for DREAMers is high — around 80% in most public opinion polls — the issues in the case are tricky,” because “the administration has hinged its legal position on its contention that Obama acted illegally.”

In another post at School Law Blog, Walsh reports that the court “agreed to review a decision by Montana’s highest court that struck down a tuition tax-credit program which, as enacted by that state’s legislature, allowed tuition scholarships to benefit students at private religious schools as well as secular schools.” For The New York Times, Adam Liptak reports that the justices also “turned down an appeal asking it to revive an Alabama law that would have banned the procedure used in the vast majority of second-trimester abortions.”

For USA Today, Richard Wolf looks back at the Supreme Court term, noting that “the conservative revolution has yet to materialize[:] Chief Justice John Roberts has shown he holds the court’s new swing vote, and President Donald Trump’s two highly touted nominees have proven to be unpredictable.” For The Wall Street Journal, Jess Bravin and Brent Kendall report that “[w]hile some cases split the court along its conservative-liberal divide, surprising coalitions emerged, suggesting a court preferring to tread cautiously toward the right rather than make a headlong rush.” Also for The Wall Street Journal, Kendall and Bravin report that, although “[o]n the term’s most significant, ideologically charged cases, the Trump appointees voted together,” “the two justices carved out distinct identities,”  “particularly when it came to crime and commerce.” Bloomberg Law’s Cases and Controversies podcast offers a wrap-up of the term, looking at “where the high court is and where it’s going.” MoloLamken surveys the most important business cases of the term. Nina Totenberg and Tom Goldstein recap the term at NPR.

At Jost on Justice, Kenneth Jost writes that in Rucho v. Common Cause and Lamone v. Benisek, in which the court held that partisan-gerrymandering challenges to electoral maps are political questions that are not reviewable in court, “Roberts wrongly concludes that history is destiny: the Court’s failure in four cases to settle on a judicially manageable standard for gerrymandering cases proves, he says, that there is none.” At The Economist’s Democracy in America blog, Steven Mazie worries that “[w]ith no one watching over them, and with increasingly sophisticated methods of identifying optimal maps to warp elections, legislators are now empowered to gerrymander at will.”

At The Conversation, Kevin Johnson finds it “telling” that, in Department of Commerce v. New York, a challenge to the government’s decision to add a question about citizenship to the 2020 census, Chief Justice John “Roberts, who is keenly concerned about the court’s legitimacy, sided with the liberal justices in order to send the case back to the agency.” In an op-ed at Fox News, Curt Levey calls Roberts’ opinion “a repeat performance of his infamous 2012 decision rescuing ObamaCare.”

At Washington Monthly, Gilad Edelman writes that “[i]f a successful compromise is one that leaves both sides disappointed, then John Roberts had a banner day on Thursday,” with opinions for the court in both Rucho and Commerce. Opening Arguments (podcast) “breaks down the latest decisions from the Roberts court, including the ostensible ‘win’ in … the citizenship question case), and the crushing loss in the gerrymandering cases.”

At the Pacific Legal Foundation blog, Christina Martin weighs in on Knick v. Township of Scott, Pennsylvania, the justices overruled a precedent that required property owners to follow state compensation procedures before bringing federal takings claim under the Constitution, arguing that the decision “will have implications stretching far beyond Knick’s farm in Pennsylvania, giving property owners nationwide a fighting chance to challenge government overreach and abuse.” Additional commentary on Knick comes from Adam Carrington in an op-ed for the Washington Examiner.


  • This blog’s Stat Pack, which contains an array of statistics for the recently concluded term, is here.
  • For the ABA Journal, Mark Walsh explains that “[a]fter [Justice Clarence] Thomas’ nearly 30 years on the court, his critics and supporters are still debating who Thomas is.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “John Malcolm joins Elizabeth Slattery to discuss the Supreme Court’s rulings on agency deference, the Census citizenship question, partisan gerrymandering, and a few cases coming up next term.”
  • In an op-ed for The Hill, Ryan Owens explains why, in Gundy v. United States, the court should have revived a doctrine that prohibits Congress from delegating its authority to other entities, observing that “[i]t’s not often one has the opportunity to undo an original sin.”
  • At Crime & Consequences, Kent Scheidegger writes that the court’s decision in Mitchell v. Wisconsin, in which the justices held that a state law allowing law enforcement to draw blood from unconscious drivers without a warrant does not violate the Fourth Amendment, “leaves just a little bit of daylight for defendants.”
  • In an op-ed for the Washington Examiner, Adam Carrington weighs in on Kisor v. Wilkie, in which the court left in place, but narrowed, precedent holding that courts should defer to an administrative agency’s reasonable interpretation of its own ambiguous regulations, lamenting that, “though zombified, Auer still packs an unconstitutional bite.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Jul. 1, 2019, 7:17 AM),