Friday round-up

Yesterday the Supreme Court released three more decisions. In County of Maui, Hawaii v. Hawaii Wildlife Fund, the court held 6-3 that a Clean Water Act permit is required for either a direct discharge of pollutants into navigable waters or its functional equivalent. Lisa Heinzerling analyzes the opinion for this blog. At Bloomberg Law, Ellen Gilmer and Amena Saiyid report that “[t]he decision narrows an environmentalist-favored standard an appellate court adopted in 2018, but rejects the industry-preferred approach that would have exempted all indirect pollution from Clean Water Act permitting requirements.” Adam Liptak reports for The New York Times that “the decision was on balance a victory for environmental groups, as it allowed at least some lawsuits over groundwater discharges.” At Foley Hoag’s Law & the Environment blog, Seth Jaffe writes that the court found “a workable middle ground that avoids eviscerating the statute without subjecting untold number of groundwater discharges to CWA jurisdiction.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]

In Barton v. Barr, the court ruled 5-4 on ideological lines that an offense that will preclude an alien from being eligible for cancellation of removal does not have to be one of the offenses of removal. At Bloomberg Law, Kimberly Robinson reports that the ruling in Barton “has made it harder for longtime green card holders with a criminal conviction to remain in the United States.” Jess Bravin reports for The Wall Street Journal (subscription required) that “[t]he case turned on whether the term ‘inadmissible,’ as it appears in the statute, can refer to a green-card holder who already lives in the U.S., as the government argued, or only to someone seeking admission to the U.S.” At the Immigration LawProf Blog, Nancy Morawetz maintains that the decision “shows the Court majority’s disingenuous use of rules of statutory construction.” At Crime & Consequences, Kent Scheidegger concludes that “the Supreme Court majority and the Eleventh Circuit have correctly interpreted the statute,” and that although “[t]here is surely much room for policy disagreement in this area, … those arguments should be made to Congress.”

Finally, in Romag Fasteners v. Fossil, Inc., the court held unanimously that a plaintiff in a trademark suit can secure an award of lost profits without showing willful infringement. Ronald Mann analyzes the opinion for this blog. Jacob Baldinger has an analysis at Subscript Law.

At The NCSL Blog, Lisa Soronen discusses Monday’s decision in Ramos v. Louisiana, in which a splintered court ruled that the Constitution requires a unanimous jury verdict in state criminal trials. At Vox, Ian Millhiser writes that “[a]s the Court’s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy”; he argues that Justice Samuel Alito’s dissent “was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color.” Leah Litman suggests at Slate that Ramos “is not the first appearance of this division between justices who are willing to grapple with race and racist history and those who are not.” Also at Slate, Mark Joseph Stern asserts that Justice Elena Kagan’s vote with the dissent “in Ramos really shouldn’t have come as a surprise: The justice crosses ideological lines in divided decisions more frequently than any of her liberal colleagues[, and s]he’s also a pragmatist with a fierce commitment to precedent who will follow her principles even when they lead to an outcome she dislikes.”

Briefly:

• In another post at The NCSL Blog, Lisa Soronen looks at Monday’s decision in Atlantic Richfield Co. v. Christian, which “makes it more difficult for landowners located in Superfund sites to pursue state remedies against Superfund site owners.”
• At NPR, Nina Totenberg writes that although “Chief Justice John Roberts has worked hard to persuade the public that the justices are fair-minded legal umpires–not politicians in robes[, t]hat image got pretty scuffed up earlier this month when the conservative court majority shot down accommodations for the coronavirus that would have allowed six more days for absentee ballots to be received in Wisconsin’s election for 500 school board seats, over 100 judicial seats, and thousands of other state and local positions.”
• At Slate, law students Darcy Covert and A.J. Wang observe that “[o]n Monday, the United States Supreme Court did something it had not done for nearly a decade: It denied a motion by the solicitor general to participate in oral argument in a case to which the federal government is not a party” they argue that “[i]t shouldn’t wait 10 years to do so again.”
• In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “recap the Court’s latest rulings (non-unanimous jury verdicts, point source pollutants, and more).”

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