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We expect the Supreme Court to issue opinions on Thursday at 10 a.m. We will start live-blogging at 9 a.m. at this link, where readers can sign up for an email reminder when we begin the live blog.

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court reviews Monday’s Supreme Court orders and opinions. The justices released their decisions in four argued cases: Manhattan Community Access Corp. v. HalleckVirginia Uranium Inc. v. WarrenGamble v. United States and Virginia House of Delegates v. Bethune-Hill. The justices also granted, vacated and remanded Klein v. Oregon Bureau of Labor and Industries. The Supreme Court will release decisions in more of its 20 remaining cases on Thursday, June 20.

The October 2018 Supreme Court term has taken many twists and turns, and the court still has 20 decisions to release in its last week and a half of work before the summer recess. Much may change between now and then, but with 55 cases already decided, we have unique and surprising patterns of decision-making among the justices. This is most apparent in the court’s 5-4 (or 5-3) decisions, in which one vote could shift a decision in a different direction. The court’s 5-3 and 5-4 decisions this term include Madison v. AlabamaStokeling v. U.S.Nielsen v. Preap, Lamps Plus Inc. v. VarelaWashington State Department of Licensing v. Cougar Den Inc.Bucklew v. PrecytheApple Inc. v. Pepper, Herrera v. WyomingFranchise Tax Board of California v. HyattHome Depot U.S.A. Inc. v. JacksonManhattan Community Access Corp. v. HalleckMont v. U.S. and Virginia House of Delegates v. Bethune-Hill. So far, these decisions and the court’s majority compositions in general have not gone as many predicted.

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Petitions of the week

By on Jun 19, 2019 at 11:42 am

This week we highlight petitions pending before the Supreme Court that address the constitutionality of denying retroactive application of the Hurst decisions based on an arbitrary cut-off point and other arbitrary factors, and whether a state agency’s policy of refusing to accept advertisements that promote or oppose religion violates the First Amendment or the Religious Freedom Restoration Act.

The petitions of the week are:


Issue: Whether the Florida Supreme Court’s decision denying retroactive application of the Hurst decisions to the petitioner violates the Eighth and 14th Amendments because it uses an arbitrary cut-off point and other arbitrary factors—such as the timing of judicial decisions—to determine whether similarly situated death row prisoners will receive retroactive application of constitutional rights.


Issues: (1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.

Wednesday round-up

By on Jun 19, 2019 at 7:07 am

Subscript Law has a graphic explainer for Monday’s opinion in Gamble v. United States, in which the court reaffirmed precedent holding that prosecution of the same conduct by separate sovereigns, such as a state and the federal government, does not violate the Constitution’s double jeopardy clause. At Liberty Nation, Scott Cosenza calls the case “a big loss to limited government and the rule of law.” At his eponymous blog, Michael Dorf agrees with the outcome but raises concerns about two points made in the majority opinion. At Stanford Law School’s Legal Aggregate blog, Bernadette Meyler looks at the “outsized role” of the common law in the opinions.

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On June 28 at 1:30 p.m. EDT, join SCOTUSblog’s Tom Goldstein and Sarah Harrington for a webinar discussing key cases at the Supreme Court this term. The discussion, moderated by Laura Safdie from Casetext, will cover Department of Commerce v. New York, the challenge to the addition to the census of a question about citizenship, and partisan-gerrymandering cases Rucho v. Common Cause and Lamone v. Benisek, among other cases. Click this link to register. New York and California MCLE credit pending.


On June 27 at 12 noon PDT, in San Francisco, the American Constitution Society will host a panel reviewing the Supreme Court’s October Term 2018. Panelists include Aimee Feinberg, Rory Little and the Honorable Goodwin Liu; Brian Goldman will moderate the panel. More information, including registration instructions, is available here.


Tuesday round-up

By on Jun 18, 2019 at 7:15 am

The Supreme Court issued four opinions yesterday, bringing the total number of undecided cases down to 20. In Virginia House of Delegates v. Bethune-Hill, the court held 5-4 that Virginia legislators lack the legal right to appeal a lower-court ruling that requires 11 state legislative districts to be redrawn to correct racial gerrymandering. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. Kimberly Robinson reports for Bloomberg Law that the ruling “handed Virginia Republicans what could be a costly defeat ahead of the state’s off-year elections in November.” At AP, Jessica Gresko reports that the decision “was perhaps telegraphed by the fact that the justices previously allowed election planning to go forward with the new map.” Additional coverage comes from Richard Wolf at USA Today and from Robert Barnes and Laura Vozzella for The Washington Post. Commentary comes from Lisa Soronen at the Council of State Governments’ Knowledge Center blog and Ruthann Robson at the Constitutional Law Prof Blog.

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The Supreme Court has concluded that Virginia’s decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?

Today’s judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort at such a hard-line stance. Roberts’ dissent would have used evidence of state legislative purpose to find that Virginia’s ban was pre-empted. Overall, today’s opinions likely presage important battles to come on the matter of legislative purpose as the court’s composition shifts — battles that will take place across a wide variety of subjects and doctrinal fields.

Justice Gorsuch with opinion in Virginia Uranium Inc. v. Warren (Art Lien)

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Just over a year ago, the justices issued a narrow ruling in the case of Jack Phillips, a Colorado baker and devout Christian who refused to create a custom cake for a same-sex couple’s wedding festivities. The Supreme Court’s decision for Phillips rested primarily on the rationale that the Colorado administrative agency that ruled against Phillips treated him unfairly, because it was too hostile to his religious faith. Today the court declined to take up a question that it left open in Phillips’ case: Can sincerely held religious beliefs trump neutral laws that apply to everyone? Instead, the justices sent the case of an Oregon couple who refused to bake a cake for a same-sex wedding celebration back to the state court for another look in light of Phillips’ case.

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The First Amendment bars the government from restricting freedom of speech, but it does not generally apply to private actors, like corporations. However, private actors can be held liable for violating the First Amendment when they are acting on behalf of the government or doing something that the government would normally do – a doctrine known as the “state action” doctrine. Today the Supreme Court ruled that a private nonprofit corporation that runs a public-access TV channel is not a state actor and therefore cannot be sued for violating the First Amendment.

Justice Kavanaugh with opinion in Manhattan Community Access Corp. v. Halleck (Art Lien)

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