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Henry Schein Inc. v. Archer and White Sales Inc.

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-1272	5th Cir.	Oct 29, 2018 Tr.Aud.	Jan 8, 2019	9-0	Kavanaugh	OT 2018

Holding: 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.

Judgment: Vacated and remanded, 9-0, in an opinion by Justice Kavanaugh on January 8, 2019.

SCOTUSblog Coverage

Opinion analysis: Kavanaugh’s first opinion rejects vague exception limiting enforcement of arbitration agreements (Ronald Mann)
OT2018 #5: "Arbitration Nation" (First Mondays)
Argument analysis: Justices signal opposition to vague exceptions that would limit enforceability of arbitration agreements (Ronald Mann)
Argument preview: Justices to mull who decides whether to arbitrate – the judge or the arbitrator (Ronald Mann)
Court sends battles over services for same-sex couples, North Carolina gerrymandering back to lower courts (Updated) (Amy Howe)
Petition of the day (Aurora Barnes)

Date	Proceedings and Orders (key to color coding)
Feb 12 2018	Application (17A859) for a stay, submitted to Justice Alito.
Feb 14 2018	Response to application (17A859) requested by Justice Alito, due Wednesday, February 21, by 3 p.m. ET.
Feb 21 2018	Response to application from respondent Archer and White Sales, Inc. filed.
Feb 22 2018	Reply of applicant Henry Schein, Inc., et al. filed.
Mar 02 2018	Application (17A859) referred to the Court.
Mar 02 2018	The application (17A859) for stay presented to Justice Alito and by him referred to the Court is granted, and the proceedings in the United States District Court for the Eastern District of Texas, case No. 2:12-cv-572, are stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Mar 09 2018	Petition for a writ of certiorari filed. (Response due April 11, 2018)
Mar 23 2018	Motion to extend the time to file a response from April 11, 2018 to May 11, 2018, submitted to The Clerk.
Mar 28 2018	Motion to extend the time to file a response is granted and the time is extended to and including May 11, 2018.
May 11 2018	Brief of respondent Archer and White Sales, Inc. in opposition filed.
May 29 2018	DISTRIBUTED for Conference of 6/14/2018.
May 29 2018	Reply of petitioners Henry Schein, Inc., et al. filed. (Distributed)
Jun 18 2018	DISTRIBUTED for Conference of 6/21/2018.
Jun 25 2018	Petition GRANTED.
Jul 02 2018	Joint motion for an extension of time to file the opening briefs on the merits filed.
Jul 13 2018	Joint motion to extend the time to file opening briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 14, 2018. The time to file respondent's brief on the merits is extended to and including September 18, 2018.
Jul 30 2018	Blanket Consent filed by Petitioners, Henry Schein, Inc., et al..
Aug 03 2018	Blanket Consent filed by Respondent, Archer and White Sales, Inc..
Aug 14 2018	Brief of petitioner Henry Schein, Inc., et al. filed.
Aug 14 2018	Joint appendix filed.
Aug 14 2018	Motion to file Volume II of the joint appendix under seal filed by petitioners Henry Schein, Inc., et al.
Aug 15 2018	Amicus brief of Anthony Michael Sabino not accepted for filing. (August 20, 2018 - to be resubmitted with complete documentation.)
Aug 15 2018	Brief amicus curiae of Anthony Michael Sabino filed.
Aug 20 2018	SET FOR ARGUMENT on Monday, October 29, 2018
Aug 20 2018	Brief amicus curiae of New England Legal Foundation filed.
Aug 21 2018	Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
Aug 21 2018	Brief amicus curiae of Atlantic Legal Foundation filed.
Aug 22 2018	DISTRIBUTED for Conference of 9/24/2018.
Sep 10 2018	Record requested from the U.S.C.A. 5th Circuit.
Sep 12 2018	CIRCULATED
Sep 18 2018	Brief of respondent Archer and White Sales, Inc. filed. (Distributed)
Sep 25 2018	Brief amicus curiae of Public Citizen, Inc. filed. (Distributed)
Sep 25 2018	Brief amicus curiae of American Association for Justice filed. (Distributed)
Sep 25 2018	Amicus brief of George A. Bermann not accepted for filing. (Corrected brief submitted - October 03, 2018)
Sep 25 2018	Brief amicus curiae of George A. Bermann filed. (Distributed)
Oct 01 2018	Motion to file Volume II of the joint appendix under seal GRANTED.
Oct 15 2018	Reply of petitioners Henry Schein, Inc., et al. filed. (Distributed)
Oct 29 2018	Argued. For petitioners: Kannon K. Shanmugam, Washington, D. C. For respondent: Daniel L. Geyser, Dallas, Tex.
Jan 08 2019	Judgment VACATED and case REMANDED. Kavanaugh, J., delivered the opinion for a unanimous Court.
Feb 11 2019	JUDGMENT ISSUED.

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This Week at the Court
The Supreme Court released orders from the April 18 conference on Monday; the justices agreed to decide Bostock v. Clayton County, Georgia, consolidated with Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., and Barton v. Barr. The justices also called for the views of the U.S. solicitor general in Putnam Investments, LLC v. Brotherston.
On Tuesday, the justices dismissed Emulex Corp. v. Varjabedian as improvidently granted.
On Wednesday, the justices released their opinion in Lamps Plus Inc. v. Varela.
On Monday, the justices heard oral argument in Food Marketing Institute v. Argus Leader Media and Fort Bend County, Texas v. Davis.
On Tuesday morning, the justices heard oral argument in Department of Commerce v. New York. On Tuesday afternoon, they heard argument in Mitchell v. Wisconsin and Rehaif v. United States.
On Wednesday, the justices heard oral argument in Quarles v. United States and Taggart v. Lorenzen.
On Friday, the justices meet for their April 26 conference; John Elwood compiles the petitions relisted for this conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- 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.
- 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.
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Current Relists
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- City of Newport Beach, California v. Vos (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.
- Dahne v. Richey Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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	1 Orders Opinions	2	3	4	5	6
7	8	9	10	11	12 Conference	13
14	15 Orders IANCU V. BRUNETTI (18-302) EMULEX CORP. V. VARJABEDIAN (18-459)	16 PARKER DRILLING MANAGEMENT SERVICES V. NEWTON (18-389) NORTH CAROLINA DEPARTMENT OF REVENUE V. KAESTNER FAMILY TRUST (18-457)	17 UNITED STATES V. DAVIS (18-431) MCDONOUGH V. SMITH (18-485)	18 Conference	19	20
21	22 Orders FOOD MARKETING INSTITUTE V. ARGUS LEADER MEDIA (18-481) FORT BEND COUNTY, TEXAS V. DAVIS (18-525)	23 MITCHELL V. WISCONSIN (18-6210) REHAIF V. UNITED STATES (17-9560) DEPARTMENT OF COMMERCE V. NEW YORK (18-966) Opinions	24 QUARLES V. UNITED STATES (17-778) TAGGART V. LORENZEN (18-489) Opinions	25	26 Conference	27
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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

Henry Schein Inc. v. Archer and White Sales Inc.

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