Friday round-up

in Round-up on Jan 18, 2019 at 7:03 am

Yesterday, the challengers in Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over discovery in a challenge to the government’s decision to add a question about citizenship to the 2020 census, asked the justices to dismiss the case, arguing that a district court decision earlier this week that barred the government from adding the question has rendered the Supreme Court case moot. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Lawrence Hurley and Andrew Chung at Reuters.

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Challengers urge justices to dismiss census case after district court ruling

in Department of Commerce v. U.S. District Court for the Southern District of New York, Featured, Merits Cases, What's Happening Now on Jan 17, 2019 at 6:21 pm

On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. Today the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.

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Empirical SCOTUS: If Ginsburg leaves, it could be the liberals’ biggest loss yet – A look back at previous justices replaced with more conservative successors

in Empirical SCOTUS on Jan 17, 2019 at 5:07 pm

The saga over Justice Ruth Bader Ginsburg’s health seems to ebb and flow from the headlines almost daily. Part of the mystery relates to the amount of information shared with the public. We know that, while treating Ginsburg for rib fractures, doctors found malignant lesions in her lungs that were promptly removed, and that subsequent tests have shown no evidence of any other cancer. Ginsburg has since missed oral arguments and is reportedly recovering at home while keeping current with the court’s business through reading briefs and written transcripts of oral arguments.

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Reargument analysis: Justices seek a “middle position” in takings litigation case

in Knick v. Township of Scott, Pennsylvania, Featured, Merits Cases on Jan 17, 2019 at 2:28 pm

During yesterday’s argument in Knick v. Township of Scott – the second time the court has heard the case this term – the justices seemed to be looking for a compromise position. The court granted review in the case to decide whether to overrule a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which requires local-government takings plaintiffs to follow the state’s compensation procedures before alleging a taking in federal court. Williamson County is controversial because, as I explained previously, it often prevents local takings plaintiffs from getting into federal court. The court first heard argument in October, before Justice Brett Kavanaugh joined the bench, and ordered supplemental briefing in November, asking for more information on one of the plaintiff’s alternative theories. At yesterday’s argument, the justices seemed to search for a narrow way to limit Williamson County’s effect on local takings plaintiffs without overturning the decision or revisiting the meaning of an unconstitutional taking.

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Thursday round-up

in Round-up on Jan 17, 2019 at 6:53 am

For this blog, in a post that first appeared at Howe on the Court, Amy Howe analyzes yesterday’s oral argument in Tennessee Wine & Spirits Retailers Association v. Blair, a challenge to Tennessee’s durational residency requirements for liquor licensing. For The Washington Post, Robert Barnes reports that “Supreme Court justices indicated … that they thought Tennessee’s tough residency requirements for those who want to run liquor stores have more to do with protecting in-state economic interests than guarding against the evils of alcohol[, [b]ut they also wondered how far they could go, since the Constitution gives states an especially pivotal role in regulating booze.” Additional coverage comes from Adam Liptak for The New York Times, Richard Wolf for USA Today. Commentary comes in video from ABC News Live’s The Briefing Room.

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Argument analysis: Justices have strong views about removal of class actions

in Home Depot U.S.A. Inc. v. Jackson, Featured, Merits Cases on Jan 16, 2019 at 8:15 pm

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument.

The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts have original jurisdiction.” In 2005, responding to concerns that state courts have been unduly receptive to class actions, Congress adopted the Class Action Fairness Act (often called the CAFA), which included a variety of provisions designed to make it easier for class-action defendants to remove those cases to federal court. One provision, in Section 1332, granted original federal jurisdiction over most class actions seeking a recovery of more than $5 million. Another provision, in Section 1453, provided that “any defendant” can remove a “class action” as defined in Section 1332.

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Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance (Corrected)

in Stokeling v. U.S., Featured, Merits Cases, Corrections on Jan 16, 2019 at 7:10 pm

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayor’s dissent was joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Elena Kagan.

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Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

in Tennessee Wine & Spirits Retailers Association v. Blair, Featured, Merits Cases on Jan 16, 2019 at 3:45 pm

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail license to sell alcohol there, or is the state’s power instead limited by a doctrine known as the dormant commerce clause, which bars states from discriminating against interstate commerce? The Supreme Court’s answer could have a significant impact on where Americans buy their alcohol and what kinds are available to them, but after an hour of oral argument it was hard to see exactly where the justices were headed in the case.

Shay Dvoretzky for petitioner (Art Lien)

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Argument transcripts

in Merits Cases on Jan 16, 2019 at 2:03 pm

The transcript of oral argument in Knick v. Township of Scott is available on the Supreme Court’s website; the transcript in Tennessee Wine & Spirits Retailers Association v. Blair is also available.

 
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Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond

in Azar v. Allina Health Services, Featured, Merits Cases on Jan 16, 2019 at 1:52 pm

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires the Supreme Court to interpret a provision of the Medicare Act, 42 U.S.C. §§ 1395hh(a)(2), that applies to any “substantive” changes to benefits, payment of services, or eligibility, and, therefore implicates significant components of the entire program. At a broader level still, and beyond the Medicare context, the case has administrative law mavens watching because it gives the court the opportunity to opine on some still unsettled, yet central, administrative law questions about the line between substantive and interpretive rules.

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