McBurney v. Young

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McBurney v. Young

Court puts partisan-gerrymandering rulings on hold – Amy Howe

Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent – Anita Krishnakumar

Relist Watch – John Elwood

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Conference of May 23, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
12-17	4th Cir.	Feb 20, 2013 Tr.Aud.	Apr 29, 2013	9-0	Alito	OT 2012

Holding: Virginia’s Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are “fundamental.” The Act also does not violate the dormant Commerce Clause: it neither prohibits access to an interstate market nor imposes burdensome regulation on that market; and in any event, a state does not violate the Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.”

Judgment: Affirmed, 9-0, in an opinion by Justice Alito on April 29, 2013. Justice Thomas filed a concurring opinion.

Opinion recap: Only one argument needed (Lyle Denniston)
Argument recap: Agnosticism as an argument (Lyle Denniston)
Argument preview: How open are public records? (Lyle Denniston)

Date	Proceedings and Orders (key to color coding)
Apr 20 2012	Application (11A1012) to extend the time to file a petition for a writ of certiorari from May 1, 2012 to June 30, 2012, submitted to The Chief Justice.
Apr 25 2012	Application (11A1012) granted by The Chief Justice extending the time to file until June 29, 2012.
Jun 29 2012	Petition for a writ of certiorari filed. (Response due August 6, 2012)
Jul 9 2012	Waiver of right of respondents Nathaniel L. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al. to respond filed.
Jul 18 2012	Waiver of right of respondent Thomas C. Little to respond filed.
Jul 25 2012	DISTRIBUTED for Conference of September 24, 2012.
Jul 30 2012	Response Requested . (Due August 29, 2012)
Aug 28 2012	Brief amici curiae of American Society of News Editors, et al. filed.
Aug 29 2012	Brief amici curiae of Citizens for Responsibility and Ethics in Washington (CREW), et al. filed.
Aug 29 2012	Brief of respondents Nathaniel L. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al. in opposition filed.
Aug 29 2012	Brief amici curiae of Judicial Watch, Inc., et al. filed.
Aug 29 2012	Brief amici curiae of Coalition for Sensible Public Records Access, et al. filed.
Sep 12 2012	DISTRIBUTED for Conference of October 5, 2012.
Sep 12 2012	Reply of petitioners Mark J. McBurney, et al. filed. (Distributed)
Oct 5 2012	Petition GRANTED.
Nov 9 2012	The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 14, 2012.
Dec 4 2012	Motion to dispense with printing the joint appendix filed by petitioner Mark J. McBurney, et al.
Dec 7 2012	The time to file the joint appendix and petitioners' brief on the merits is further extended to and including December 21, 2012.
Dec 10 2012	Motion to dispense with printing the joint appendix filed by petitioners GRANTED.
Dec 16 2012	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners
Dec 18 2012	SET FOR ARGUMENT ON Wednesday, February 20, 2013
Dec 18 2012	The time to file the joint appendix and petitioners' brief on the merits is further extended to and including December 26, 2012.
Dec 26 2012	Brief of petitioners Mark J. McBurney, et al. filed.
Jan 2 2013	Brief amici curiae of The Reporters Committee for Freedom of the Press and 53 Media Organizations, et al. filed.
Jan 2 2013	Brief amici curiae of Judicial Watch, Inc., and Allied Educational Foundation filed.
Jan 2 2013	Brief amici curiae of Coalition for Sensible Public Records Access, et al. filed.
Jan 2 2013	Brief amicus curiae of Institute for Justice filed.
Jan 2 2013	Brief amicus curiae of Public Justice, P.C. filed.
Jan 2 2013	Brief amici curiae of American Civil Liberties Union, et al. filed. (Distributed)
Jan 4 2013	Record received from the U.S.C.A. for the 4th Circuit. 1 Box
Jan 4 2013	Record from U.S.D.C. for Eastern District of Virginia is electronic.
Jan 10 2013	CIRCULATED.
Jan 24 2013	Brief of respondents Nathaniel L. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al. filed. (Distributed)
Jan 30 2013	Brief amici curiae of National Conference of State Legislatures, et al. filed. (Distributed)
Jan 30 2013	Proposal from counsel for amici curiae National Conference of State Legislatures, et al. to lodge copies of three letters from local governmental entities referenced in their brief.
Jan 31 2013	Brief amici curiae of Local Government Attorneys of Virginia, Inc., et al. filed. (Distributed)
Feb 4 2013	Letter from counsel for petitioners opposing lodging proposed by National Conference of State Legislatures, et al.
Feb 8 2013	Reply from counsel for amici National Conference of State Legislatures, et al. to petitioner's opposition to lodging proposal.
Feb 11 2013	Respondents' letter in support of lodging proposal.
Feb 13 2013	Reply of petitioners Mark J. McBurney, et al. filed. (Distributed)
Feb 20 2013	Argued. For petitioners: Deepak Gupta, Washington, D. C. For respondents: Earle Duncan Getchell, Jr., Solicitor General of Virginia, Richmond, Va.
Apr 29 2013	Adjudged to be AFFIRMED Alito, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.
May 31 2013	JUDGMENT ISSUED.
Jun 3 2013	Record returned to U.S.C.A. for 4th Circuit.

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Court puts partisan-gerrymandering rulings on hold – Amy Howe

Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent – Anita Krishnakumar

Relist Watch – John Elwood
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The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were 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.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- 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.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Summary reversals 4

Merits cases granted to date 73

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

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13
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16
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