Expressions Hair Design v. Schneiderman

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Expressions Hair Design v. Schneiderman

Court will review census citizenship dispute this term – Amy Howe

Argument preview: Justices to examine rejection of contracts in bankruptcy – Ronald Mann

Argument preview: Justices to consider ability of government to challenge patents in administrative process – Ronald Mann

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Feb. 2019

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Conference of February 15, 2019

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Orders

RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)

Opinions

Conference

Orders

MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

UNITED STATES V. HAYMOND (17-1672)

MONT V. UNITED STATES (17-8995)

THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
15-1391	2d Cir.	Jan 10, 2017 Tr.Aud.	Mar 29, 2017	8-0	Roberts	OT 2016

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Retail Litigation Center, et al., in support of the petitioners in this case.

Holding: (1) The Supreme Court's review is limited to whether New York General Business Law Section 518 is unconstitutional as applied to the particular pricing scheme that, before this court, petitioners, five New York businesses and their owners, have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge; (2) Section 518 prohibits the pricing regime petitioners wish to employ; (3) In regulating the communication of prices rather than prices themselves, Section 518 regulates speech. On remand the court of appeals should determine whether Section 518 survives First Amendment scrutiny as a speech regulation; and (4) Section 518 is not vague as applied to petitioners.

Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on March 29, 2017. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Alito joined.

Opinion analysis: Justices offer minimalist decision on New York credit-card surcharge statute (Ronald Mann)
Argument analysis: Merchants seem to fall short in challenge to New York statute banning credit-card “surcharges” (Ronald Mann)
Argument preview: Merchants bring payment-card interchange wars to the Supreme Court (Ronald Mann)
Justices add eight new cases to docket for upcoming term (Amy Howe)
Petitions of the day (Kate Howard)

Date	Proceedings and Orders (key to color coding)
Apr 1 2016	Application (15A1020) to extend the time to file a petition for a writ of certiorari from April 12, 2016 to May 12, 2016, submitted to Justice Ginsburg.
Apr 5 2016	Application (15A1020) granted by Justice Ginsburg extending the time to file until May 12, 2016.
May 12 2016	Petition for a writ of certiorari filed. (Response due June 15, 2016)
May 24 2016	Order extending time to file response to petition to and including August 1, 2016, for all respondents.
Jun 7 2016	Brief amicus curiae of Marion B. Brechner First Amendment Project filed.
Jun 15 2016	Brief amici curiae of Albertsons LLC, et al. filed.
Jun 15 2016	Brief amici curiae of Consumer Action, et al. filed.
Jun 15 2016	Brief amicus curiae of Cato Institute filed.
Jun 15 2016	Brief amici curiae of First Amendment Scholars filed.
Jun 15 2016	Brief amici curiae of Scholars of Behavioral Economics filed.
Aug 1 2016	Brief of respondent Eric T. Schneiderman, Attorney General of New York in opposition filed.
Aug 1 2016	Letter from counsel for respondents Cyrus Vance, District Attorney of New York County, and Ken P. Thompson, District Attorney of Kings County filed.
Aug 17 2016	DISTRIBUTED for Conference of September 26, 2016.
Aug 17 2016	Reply of petitioners Expressions Hair Design, et al. filed. (Distributed)
Sep 29 2016	Petition GRANTED.
Nov 14 2016	Joint appendix filed. (Statement of costs filed.)
Nov 14 2016	Brief of petitioners Expressions Hair Design, et al. filed.
Nov 17 2016	Brief amicus curiae of Institute for Justice filed.
Nov 21 2016	Brief amicus curiae of United States, in support of neither party filed.
Nov 21 2016	Brief amici curiae of The James Madison Institute, et al. filed.
Nov 21 2016	Brief amici curiae of Retail Litigation Center, et al. filed.
Nov 21 2016	Brief amici curiae of Cato Institute and Pacific Legal Foundation filed.
Nov 21 2016	Brief amici curiae of Consumer Action, et al. filed.
Nov 21 2016	Brief amici curiae of First Amendment Scholars and the First Amendment Lawyers Association filed.
Nov 21 2016	Brief amici curiae of Ahold U.S.A., Inc., et al. filed.
Nov 21 2016	Brief amicus curiae of CardX, LLC filed.
Nov 21 2016	Brief amicus curiae of United States Public Interest Research Group Education Fund, Inc. filed.
Nov 21 2016	Brief amici curiae of Scholars of Behavioral Economics filed.
Nov 21 2016	Brief amicus curiae of Alan S. Frankel filed.
Nov 21 2016	Brief amicus curiae of Professor Adam J. Levitin filed.
Dec 5 2016	SET FOR ARGUMENT on Tuesday, January 10, 2017.
Dec 7 2016	Record requested from the U.S.C.A. 2nd Circuit.
Dec 7 2016	Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Dec 9 2016	Record received from U.S.C.A. 2nd Circuit is electronic.
Dec 12 2016	CIRCULATED.
Dec 14 2016	Brief of respondent Eric T. Schneiderman, Attorney General of New York filed. (Distributed)
Dec 21 2016	Brief amici curiae of Labor, Environmental, and Civil Rights Organizations filed. (Distributed)
Dec 21 2016	Brief amici curiae of First Amendment Scholars filed. (Distributed)
Dec 21 2016	Brief amicus curiae of Credit Union National Association filed. (Distributed)
Dec 21 2016	Brief amici curiae of National Governors Association, et al. filed. (Distributed)
Dec 21 2016	Brief amici curiae of Action on Smoking and Health, et al. filed. (Distributed)
Dec 21 2016	Brief amici curiae of International Center for Law & Economics and Scholars of Law and Economics filed. (Distributed)
Dec 21 2016	Brief amici curiae of Florida, et al. filed. (Distributed)
Dec 21 2016	Brief amici curiae of Public Citizen, Inc., et al. filed. (Distributed)
Dec 21 2016	Brief amicus curiae of New York Credit Union Association filed. (Distributed)
Dec 21 2016	Brief amici curiae of Constitutional, Administrative, Contracts, and Health Law Scholars filed. (Distributed)
Dec 28 2016	Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Jan 3 2017	Reply of petitioners Expressions Hair Design, et al. filed. (Distributed)
Jan 10 2017	Argued. For petitioners: Deepak Gupta, Washington, D. C. For United States, as amicus curiae: Eric J. Feigin, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondents: Steven C. Wu, Deputy Solicitor General, New York, N. Y.
Mar 29 2017	Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed an opinion concurring in the judgment, in which Alito, J., joined.
May 1 2017	JUDGMENT ISSUED.

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Court will review census citizenship dispute this term – Amy Howe

Argument preview: Justices to examine rejection of contracts in bankruptcy – Ronald Mann

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The Supreme Court will release orders from the February 15 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m.
On Tuesday, the justices hear oral argument in Return Mail Inc. v. United States Postal Service.
On Wednesday, the justices hear oral argument in Mission Product Holdings Inc. v. Tempnology, LLC.
On Friday, the justices will meet for their February 22 conference.
Major Cases
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- New York State Rifle & Pistol Association Inc. v. City of New York, New York
  Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. The sale of an invention to a third party who is obligated to keep the invention confidential may place the invention “on sale” for purposes of the Leahy-Smith America Invents Act, which bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U. S. C. §102(a)(1).
- New Prime Inc. v. Oliveira A court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration; here, truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc. falls within that exception.
- Stokeling v. United States The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.
- Culbertson v. Berryhill The Social Security Act’s fee cap of 25 percent of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.
- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
see all this term’s cases »
Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Baxter v. United States (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
More Petitions »
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Cases argued 43

Cases decided 10

Summary reversals 2

Merits cases granted to date 73

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Chief Justice Roberts at Belmont University

On February 6, Chief Justice John Roberts spoke at Belmont University College of Law with Alberto Gonzales, dean of the law school and former U.S. attorney general.

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15
Conference

19
Orders
RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

20
MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)
Opinions

22
Conference

25
Orders
MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

26
UNITED STATES V. HAYMOND (17-1672)
MONT V. UNITED STATES (17-8995)

27
THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Cases argued	43
Cases decided	10
Summary reversals	2
Merits cases granted to date	73