Friday round-up

Yesterday the Supreme Court closed out its October 2018 term, releasing decisions in its most closely watched cases. In Rucho v. Common Cause, the court held by a 5-4 vote that partisan-gerrymandering challenges to electoral maps are political questions that are not reviewable in court, dismissing the case, which involved North Carolina’s congressional-district map, along with Lamone v. Benisek, a challenge to a single congressional district in Maryland. This blog’s opinion analysis comes from Amy Howe, in a post that was first published at Howe on the Court. Subscript Law has a graphic explainer for the case. Jon Levitan rounded up early coverage of and commentary on the decision for this blog.

Nina Totenberg and others report at NPR that “[t]he ruling puts the onus on the legislative branch, and on individual states, to police redistricting efforts.” For the Los Angeles Times, David Savage reports that “[t]he court’s four liberal justices dissented, warning that new technology has made partisan gerrymandering easier and more precise than ever before.” For Capitol Media Services (via Tucson.com), Howard Fischer reports that a “decision by Arizona voters in 2000 could minimize the effects on this state of the U.S. Supreme Court ruling Thursday on partisan gerrymandering,” but that although “[o]n paper, redistricting in Arizona is not a partisan exercise,” politics are playing a role, “and now, with Thursday’s Supreme Court ruling, any bid to give a partisan edge is no longer a concern of — or can be reviewed — by federal courts.”

In an op-ed for The New York Times, Richard Hasen writes that although the decision “purports to take federal courts out of the business of policing partisan gerrymanders and leave the issue for states to handle,” it “will instead push federal courts further into the political thicket, and, in states with substantial minority voter populations, force courts to make logically impossible determinations about whether racial reasons or partisan motives predominate when a party gerrymanders for political advantage.” At the Princeton Election Consortium, Sam Wang argues that the court’s “reason for not addressing partisan gerrymandering is at best a misunderstanding of the detection methods; at worst, it’s a clever dodge.” The editorial board of The Wall Street Journal asserts that “[t]he majority opinion by Chief Justice John Roberts is a notable example of judicial restraint, and over the long run it will protect the High Court’s credibility.”

In Department of Commerce v. New York, the court ruled 5-4 that although Secretary of Commerce Wilbur Ross’ decision to add a question about citizenship to the 2020 census did not violate the Constitution’s enumeration clause or the Census Act, his stated reasons for doing so were pretextual, and that the question can’t be added until the department provides an adequate explanation for the decision. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. Subscript Law’s graphic explainer is here. Jon Levitan prepared an afternoon round-up for this blog.

David Savage reports for the Los Angeles Times that “Roberts, who had the deciding vote, wrote that the law would have allowed the administration to move ahead if it had provided a straightforward justification.” Also at NPR, Totenberg and Hansi Lo Wang report that “President Trump says he is looking into delaying the 2020 census, hours after the Supreme Court” issued its decision. At Greenwire (subscription required), Ellen Gilmer and Niina Farah report that the decision “is expected to have ripple effects in administrative and environmental law” and “could be especially relevant in challenges to EPA rulemaking.”

At The Economist’s Democracy in America blog, Steven Mazie writes that “Chief Justice Roberts’ opinion has the feel of a brokered compromise—it even reads as if the final section may have been added or revised late in the process.” At Balkinization, Rick Pildes describes the decision as “a powerful example of what I call an ‘institutionally realist’ approach to judicial review of executive branch action.” At Reason’s Volokh Conspiracy blog, Jonathan Adler observes that “the Chief Justice’s decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence—whether or not in the official record—to show that they, too, have been the subject of an unlawfully pretextual agency action.” At National Review, David French remarks that “[t]here is a lesson here, one that the administration (and indeed, all litigants) would do well to remember[:] When engaged in conduct that’s likely to lead to litigation, make it easy for the court to rule for you.”

Nina Totenberg reports on both the gerrymandering and the census decisions for NPR. At Bloomberg, Greg Stohr reports that “[t]ogether, the last rulings of the court’s nine-month term underscored Roberts’s singular role: a conservative who is also the court’s pivotal vote and staunchest protector of what he sees as its institutional reputation.”

In Mitchell v. Wisconsin, another 5-4 decision, 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. This blog’s opinion analysis, which first appeared at Howe on the Court, comes from Amy Howe. At NPR, Nina Totenberg and Bill Chappell report that “[t]he opinions reflect a deep divide over an essential question: whether the Wisconsin case should be decided on the basis of implied consent or on the question of what kind of emergencies allow for an exception to Fourth Amendment protections.”

The court also restored Carpenter v. Murphy, which asks whether Oklahoma had power to try Patrick Murphy for a murder that took place on land that was part of the Creek Nation, to its calendar for reargument next term. Mark Walsh offers a parting “view” from the courtroom for October Term 2018 for this blog.

At the Cato Institute’s Cato at Liberty blog, William Yeatman remarks that in 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, “because Auer deference has been rendered impotent, opponents of the doctrine effectively ‘won,’ even though we officially ‘lost.’” Also at Cato at Liberty, Ilya Shapiro writes that Justice Brett “Kavanaugh makes the perfect analogy that sums up the unanimous Court’s position: ‘Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.’” At PrawfsBlawg, Howard Wasserman takes issue with the baseball analogy. The editorial board of The Wall Street Journal regrets that “Chief Justice John Roberts blinked” in the case “and joined the four liberal Justices to preserve the Court’s misconceived Auer precedent.” Additional commentary comes from Tony Francois at the Pacific Legal Foundation blog.

In a third post at Cato, Ilya Shapiro raises a glass to Wednesday’s opinion in  Tennessee Wine & Spirits Retailers Association v. Thomas, in which the court held that the Constitution bars states from imposing residency requirement for liquor licenses; he finds “it terrific that a lopsided majority of justices (7-2) thus preserved economic liberty and interstate commerce, as against a flawed claim that the 21st Amendment (which repealed prohibition and gave states the power to regulate the importation of alcohol) somehow gives states the power to impose otherwise unconstitutional business regulations.” The editorial board of The Wall Street Journal observes that “[t]here are better cases where the current Court can put limits on the Commerce Clause, and we look forward to supporting Justice Gorsuch on those.”

Briefly:

• At the Connecticut Law Tribune (subscription may be required), Dwight Merriam maintains that although 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, offers “no bright-line test for when a monument with a religious symbol runs afoul of the establishment clause,” “the court offers some guidance that may help in deciding such cases[:] The sound bite version is that when it comes to such public displays, age and intent matter.” [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 the Competitive Enterprise Institute, Devin Watkins writes that the court’s ruling in Gundy v. United States, in which several justices signaled receptiveness to reviving a doctrine that prohibits Congress from delegating its authority to other entities, such as administrative agencies, “suggests that the way our government works will be substantially changed towards greater democratic involvement.”

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