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On Tuesday, the Supreme Court will release orders from the May 23 conference at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will begin live-blogging at 9:25 a.m. at this link, where readers can sign up for an email reminder when we start the live blog.

In the next month or so, the Supreme Court is expected to issue its decisions in a pair of cases challenging federal congressional districts in North Carolina and Maryland as the product of unconstitutional partisan gerrymandering. When the justices heard oral argument in the two cases in late March, a key issue was whether courts should review partisan-gerrymandering claims at all or should instead stay out of them, leaving the issue to politicians and the political process. Two weeks ago, Republican officials from Ohio and Michigan asked the Supreme Court to put lower court rulings that found partisan gerrymandering in those states on hold while they appeal. Today the Supreme Court granted those requests, in a series of brief unsigned orders that were fairly unsurprising in light of the pending North Carolina and Maryland cases.

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Anita S. Krishnakumar is the Mary C. Daly Professor of Law and the Associate Dean for Faculty Scholarship at St. John’s University School of Law.

The U.S. Supreme Court’s decision in Franchise Tax Board of California v. Hyatt has received significant attention for its overruling of Nevada v. Hall, a 40-year-old precedent that held that states lack sovereign immunity in each other’s courts. Observers have been quick to quote the penultimate sentence of Justice Stephen Breyer’s dissent (“Today’s decision can only cause one to wonder which cases the Court will overrule next”) and point to Hyatt as a harbinger that Roe v. Wade and other similar high-stakes constitutional precedents may be next in line for abrogation.

Overruling prior judicial decisions is a big deal; the doctrine of stare decisis directs judges, including Supreme Court justices, to follow prior decisions even when they think those prior decisions are wrong. The Supreme Court is not supposed to overrule a prior ruling unless at least one of several conditions is met: The decision is unworkable and lower courts have found it difficult to administer; it rests on outdated facts; or it is inconsistent with later legal developments, such as other judicial decisions or new laws passed by the legislature. The court is also not supposed to overrule precedent that parties have relied on in structuring their lives.

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Friday round-up

By on May 24, 2019 at 6:10 am

Subscript Law has a graphic explainer for Monday’s decision in Herrera v. Wyoming, in which the court held that a hunting right granted to the Crow Tribe under an 1868 treaty is still valid. At Dorf on Law, Michael Dorf writes that “on remand Wyoming can prevail by [showing] that enforcement of its law without exceptions for people like Herrera is necessary to serve the state’s interest in conservation”; he “contrast[s] that proposition with the operative constitutional rule for free exercise claims,” noting that “the Court construes the First Amendment’s Free Exercise Clause not to require religious exceptions, while it construes treaty rights to require exceptions (absent a showing of necessity).”

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The Georgetown University Supreme Court Institute (SCI) is seeking applicants for the position of director. SCI’s principal function is to provide moot courts to attorneys who will argue in the Supreme Court. The director’s principal role is to organize, participate in and monitor those moots courts. Substantial experience as an appellate advocate is required. The job posting, with directions on how to apply and a link to submit a cover letter and resume, is available at this link.


With many decisions still to come in the next month or so, the Supreme Court has already started to define itself in the post-Kennedy era. Certain patterns have emerged in the justices’ voting that distinguish this court from past courts. We are also beginning to see how the newest justices and President Donald Trump’s appointees – Justices Neil Gorsuch and Brett Kavanaugh — are in some ways similar and in others quite distinct.

This term began with significant expectations among conservatives and liberals alike that the Supreme Court would push far to the right. Although such expectations were well-founded, they have not exactly panned out, at least so far. Of the eight 5-4 votes the justices have had in argued cases so far this term, the four liberals have only been in dissent in four, or 50 percent, of them. This might not showcase the power of a conservative bloc vote in the same manner as some expected. Gorsuch, Kavanaugh and Chief Justice John Roberts have also all aligned with the liberal justices in close decisions. This lack of conservative cohesion, especially between Trump’s nominees, has struck some observers as somewhat surprising (although others, like Professor Jonathan Adler, seem less shocked by it).

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Relist Watch

By on May 23, 2019 at 10:12 am

John Elwood reviews Monday’s relists.

Congress is fighting with the executive branch to try to obtain information this week. But here at Relist Watch, we’re just giving the stuff away.

A lot of throughput this week, as the Supreme Court disposed of five relists.

Most puzzling is City of Newport Beach, California v. Vos, 18-672, which asked whether the Americans with Disabilities Act requires law-enforcement officers to provide accommodations to armed, violent and mentally ill suspects as they bring them into custody. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted, and many thought the court was looking to finally resolve the question. Newport Beach had been relisted four times, suggesting that one of the justices at least had been exploring a dissent; perhaps he or she was talked out of it.

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Thursday round-up

By on May 23, 2019 at 6:29 am

Subscript Law offers a graphic explainer for Monday’s opinion in Merck Sharp & Dohme v. Albrecht, in which the court held that whether the FDA would have rejected a proposed change to a prescription drug label, pre-empting a state-law claim for failure to warn of the drug’s risks, is a question of law for a judge to decide. At the NCSL blog, Lisa Soronen observes that “[w]hile juries are unpredictable, they have a reputation for being more favorable to injured individuals than large, well-funded corporations,” so that “juries may be more likely than judges to conclude that the FDA would have agreed to the label change because such a ruling will make it possible for a state-law failure-to-warn claims to go forward.” At Law360 (subscription required), Emily Field explains that the court “also provided some clarity for the ‘clear evidence’ standard it set out for failure-to-warn cases a decade ago.”

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Petitions of the week

By on May 22, 2019 at 4:10 pm

This week we highlight petitions pending before the Supreme Court that address the validity of the Manual of Patent Examining Procedure Section 1207.04, under what circumstances a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, and whether 29 U.S.C. § 1344(c) precludes disgorgement of profits as an appropriate equitable remedy under 29 U.S.C. § 1303(f).

The petitions of the week are:


Issue: Whether, or under what circumstances, a criminal defendant pursuing a second or successive motion under 28 U.S.C. § 2255 is entitled to relief under a retroactive constitutional decision invalidating a federal statutory provision, when the record is silent as to whether the district court based on its original judgment on that provision or another provision of the same statute.


Issue: Whether 29 U.S.C. § 1344(c) precludes disgorgement of profits from the Pension Benefit Guaranty Corporation as an appropriate equitable remedy under 29 U.S.C. § 1303(f) for the Pension Benefit Guaranty Corporation’s breaches of fiduciary duties.


Issue: Whether the Manual of Patent Examining Procedure Section 1207.04 violates patent applicants’ statutory right of appeal following a second rejection.

Wednesday round-up

By on May 22, 2019 at 7:10 am

At the NCSL blog, Lisa Soronen looks at Monday’s opinion in Herrera v. Wyoming, in which the court held that “an old treaty allowing Native Americans to hunt on federal land is still valid.” At The Economist’s Democracy in America blog, Steven Mazie writes that “Justice [Neil] Gorsuch’s endorsement of the liberal interpretation gives Herrera added weight and is no surprise: a Coloradan, he came to the Supreme Court from the Tenth Circuit, where he was vigilant on questions of tribal sovereignty.”

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Yesterday’s opinion in Mission Product Holdings Inc. v. Tempnology, LLC resolved a long-standing disagreement in the lower courts about what happens when a debtor exercises its statutory right to reject a contract in bankruptcy. Section 365 of the Bankruptcy Code gives the debtor an explicit right to “reject” contracts, and tells us that rejection amounts to a “breach” of the contract, which gives the nonbankrupt counterparty a right to sue the bankrupt for damages. The lower courts have struggled, though, in deciding whether the rejection’s “breach” also rescinds the entire contract. In this case, for example, the contract in question is a trademark license, and the debtor not only wants to terminate its own obligations under the contract; it also wants to retract the licensee’s right to use the debtor’s trademark. Justice Elena Kagan’s opinion for the Supreme Court gives us a clear answer: Rejection breaches but does not rescind the contract in question.

Justice Kagan with opinion in Mission Product Holdings v Tempnology (Art Lien)

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