Wednesday round-up

After last week’s decision in Department of Commerce v. New York, in which the Supreme Court blocked the Trump administration’s plan to add a citizenship question to the 2020 census, the government announced yesterday that it is printing the census forms without the question. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Jess Bravin and Janet Ademy report for The Wall Street Journal that “[t]he decision to stop pursuing the citizenship question was made just hours before it became public.” For The New York Times, Michael Wines describes the decision as “a victory for critics who said the question was part of an administration effort to skew the census results in favor of Republicans,” and “a remarkable retreat for an administration that typically digs into such fights.”

At CNN, Joan Biskupic writes that Chief Justice John Roberts’ opinion blocking the citizenship question “echoed his surprise affirmation of the Affordable Care Act in 2012”; she suggests “that the 5-4 census case and other moves in the recently completed session demonstrated Roberts’ new variability in fraught cases.” At FiveThirtyEight, Amelia Thomson-DeVeaux explains that, “[b]ased on how they have ruled this year, there are now three justices who could reasonably be seen as ‘swing’ votes of one kind or another: Roberts, Kavanaugh and Gorsuch,” concluding that “the lack of a single ‘swing’ justice may have created new opportunities for the court’s liberal minority to forge alliances with the conservatives.” The editorial board of the Los Angeles Times assesses “whether [the justices] safeguarded the court’s independence from partisan politics, as well as the perception of its independence” this term, and gives the court “a passing grade.”

At Take Care, Danny Wilf-Townsend weighs in on last week’s decision in Rucho v. Common Cause, in which the court held that partisan-gerrymandering challenges to electoral maps are political questions that are not reviewable in court, arguing that, “[t]o adapt the Chief Justice’s famous metaphor, Rucho is like an umpire who, saying the strike zone cannot be administered fairly, decides to let whichever team is winning call the balls and strikes.” Additional commentary comes from LeRoy Goldman at his eponymous blog.

At his eponymous blog, William Goren unpacks the various opinions in Kisor v. Wilkie, in which the court reaffirmed, but narrowed, precedent holding that courts should defer to an administrative agency’s reasonable interpretation of its own genuinely ambiguous regulations. At Covington’s Inside Energy & Environment blog, Thomas Brugato and Brandon Rattiner explain that the decision “will have significant ramifications for the Environmental Protection Agency … and environmental law.” In an op-ed for the Washington Examiner, Ashley Baker calls Kisor “an important step toward reining in the largely unaccountable and ever-expanding administrative state.”

Briefly:

• For The National Law Journal (subscription may be required), Tony Mauro reports that a “brief set to be filed Wednesday in the U.S. Supreme Court on behalf of 206 corporations asserts that ending discrimination against LGBTQ workers is ‘good for business, employees, and the U.S. economy.’”
• At E&E News, Ellen Gilmer notes that “[e]nvironmental implications lurked below the surface of a slew of Supreme Court disputes this term, making it one of the most consequential in years for court watchers tracking those issues.”
• At the Yale Journal on Regulation’s Notice & Comment blog, Bernard Bell offers the first of two posts discussing the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, “which upended over fifty years of doctrine defining the scope of FOIA Exemption 4, and explor[ing] five implications of the Court’s decision.”
• At The George Washington Law Review’s On the Docket blog, Alan Morrison looks at Tennessee Wine & Spirits Retailers Association v. Thomas, in which the court held that the commerce clause of the Constitution implicitly bars states from imposing residency requirement for liquor licenses, suggesting that “[p]erhaps when the next round of cases comes before the Court, the challenger will move the Privileges and Immunities argument from an afterthought to a position front and center.”
• At The NCSL Blog, Lisa Soronen calls Kelly v. United States, next term’s case stemming from the “Bridgegate” controversy in New Jersey that asks whether a public official defrauds the government of its property when she provides a public-policy reason for an official decision that is not her actual reason, “a conflux of fascinating law and facts.”
• In another post at The NCSL Blog, Soronen writes that another new grant, Espinoza v. Montana Department of Revenue, “raises an issue the U.S. Supreme Court has long wrestled with: If a state-aid program violates a state constitutional prohibition against mixing church and state because religious institutions may participate, does discontinuing that program violate the federal constitution’s free exercise or equal protection clauses?”

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