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Tuesday round-up

Yesterday the court released three opinions. By a vote of 6-3, the court dismissed as moot a Second Amendment challenge to New York City’s now-repealed limits on transporting personal firearms, in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. At Education Week’s School Law Blog, Mark Walsh reports that the decision “sidestepped a potentially major ruling on gun rights under the Second Amendment.” For USA Today, Richard Wolf reports that “[t]hree conservative justices dissented in a 31-page rebuttal, arguing that the court should strike down the restriction to make clear that it infringed on the right to bear arms.” For The Wall Street Journal (subscription required), Jess Bravin reports that “[t]he unsigned, two-page opinion was an anticlimactic end to a case once expected to open a new chapter in gun rights[, b]ut the court’s pause may be short-lived.” Nina Totenberg reports at NPR that Justice Brett Kavanaugh “wrote separately to stress that while he agreed with the majority on procedural grounds, he agreed with the dissenters–Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch–on one key issue”: whether “the lower courts were using the wrong test to evaluate gun laws, a test that is far too deferential to gun regulators.” Mariam Morshedi analyzes the decision at Subscript Law.

At the Constitutional Law Prof Blog, Ruthann Robson notes that “the methodology for determining what level of scrutiny should be applied in Second Amendment challenges remains unresolved by the Supreme Court.” At Slate, Mark Joseph Stern writes that “[f]our conservative justices announced their intention to broaden the right to bear arms as soon as possible, resuming the Second Amendment revolution the court began in 2008[; t]he only real question now is whether Chief Justice John Roberts is ready to join their crusade.” The Duke Center for Firearms Law’s Second Thoughts blog agrees that “[t]he big question is what’s next,” because “[i]t seems clear that there are four votes for another cert grant, which theoretically could come very soon[:] … Assault weapons prohibitions, public carry licenses, and interstate sales are among the possible topics for imminent Supreme Court review.” The editorial board of The Wall Street Journal laments that by “duck[ing] its first Second Amendment case in a decade,” “[t]he Court is sending a signal that the Second Amendment is the exception in the Bill of Rights, a second-class freedom.” Additional commentary comes from Ian Millhiser at Vox.

In Maine Community Health Options v. United States, the court held 8-1 that Congress is required to reimburse health insurance companies for losses created by the Affordable Care Act. This blog’s opinion analysis, which was first published at Howe on the Court, comes from Amy Howe. Kevin Daley reports at The Washington Free Beacon that the “decision clears the way for insurers to collect upwards of $12 billion via an Obamacare program designed to help insurers manage risks they took by participating in ACA exchanges[;] Congress has refused to appropriate federal money for the program since 2014, leaving insurers in the lurch.” For The Wall Street Journal (subscription required), Brent Kendall reports that the court ruled “that lawmakers had created rare obligations for the government,” that “Congress couldn’t shirk that commitment after the fact in spending legislation, and [that] insurers have a valid basis for bringing legal claims.” Nina Totenberg reports at NPR that the “decision was the third involving Obamacare at the Supreme Court,” and that “next year, the Supreme Court is scheduled to consider once again whether the law is unconstitutional.” At Vox, Ian Millhiser writes that the lopsided ruling suggests “that most of the Supreme Court is fully capable of separating their personal political views from what the law requires in an Obamacare-related case.”

A 5-4 court ruled in Georgia v. Public.Resource.Org Inc. that Georgia is not entitled to copyright protection for its official annotated code. Ronald Mann analyzes the opinion for this blog. [Disclosure: Arnold & Porter, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.]

The court also released orders from last week’s conference. The justices did not add any cases to their merits docket, and they asked for additional briefing in two cases involving congressional subpoenas seeking the president’s financial records from his longtime accountant and lenders, requesting a discussion of whether the cases raise “political questions” that the courts cannot consider. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. Greg Stohr reports at Bloomberg that “[s]hould the justices say the courts lack power to hear Trump’s suits over the House subpoenas, the ruling could lead to his tax returns becoming public before the November election[:] The banks and the accounting firm aren’t contesting the subpoenas and have said they will comply with their legal obligations.” At Crime & Consequences, Kent Scheidegger notes that “[w]henever the Supreme Court makes a significant change in the law — as it did last week when it overruled its prior approval of nonunanimous juries in state criminal cases” in Ramos v. Louisiana, “the question arises of what to do about cases that have already been tried under the old rule”: Yesterday “the high court sent back a bunch of cases from Louisiana and Oregon for reconsideration in light of the Ramos case.”


  • Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that another pandemic-related emergency filing reached the Supreme Court” last night, when “[a] group of Pennsylvania businesses … asked the justices to temporarily block the enforcement of the executive order entered last month by the state’s governor, telling them that the order and others like it are doing ‘substantial, unprecedented damage to the economy.’”
  • In an op-ed for the Chicago Daily Law Bulletin, Daniel Cotter unpacks the opinions in Ramos.
  • At The NCSL Blog, Lisa Soronen discusses last week’s opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund, in which the court held that a Clean Water Act permit is required for either a direct discharge of pollutants into navigable waters or its functional equivalent. [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.]
  • At The Federalist, Travis Barham urges the court to review Uzuegbunam v. Preczewski, a First Amendment challenge to a public college’s regulations governing campus speech.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Apr. 28, 2020, 7:20 AM),