An observer might be excused if she was confused by Monday’s oral argument in Food Marketing Institute v. Argus Leader Media. The case concerns the application of the term “confidential” commercial or financial information in Exemption 4 of the Freedom of Information Act to grocery-store data collected from transactions involving debit cards issued to Supplemental Nutrition Assistance Program benefits recipients. A South Dakota newspaper had requested the data as part of its investigations into the SNAP program. FOIA cases typically inspire at least gestural exhortations about the necessity of an informed public and the danger that excessive governmental disclosure poses to the nation. Instead, the justices first spent a fair amount of time on complex justiciability issues that arose late in the litigation and then focused on dry questions of statutory interpretation. This was in part the product of the factual and procedural issues in this case, but it suggests that the court may follow the lead of 2011’s Milner v. Department of Navy and reverse purpose-driven lower-court interpretations of FOIA in favor of statutory textualism.
Evan A. Young for petitioner (Art Lien)
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The transcript of oral argument in Mitchell v. Wisconsin is available on the Supreme Court’s website; the transcript in Rehaif v. United States is also available.
Under Wisconsin law, anyone who drives on the state’s roads is assumed to have consented to have his blood tested for alcohol and drugs. The state’s laws also assume that a driver who is unconscious has not withdrawn that consent. Today – in a rare afternoon session – the Supreme Court heard oral argument in a challenge to the constitutionality of the provision allowing a blood test of an unconscious driver without a warrant. After an hour of debate, it wasn’t entirely clear how the justices might rule. But unlike the morning’s argument in the dispute over the decision to add a question about citizenship to the 2020 census, it seemed possible that the court might not divide completely along ideological lines, with Justice Stephen Breyer at times appearing to side with the state.
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The Supreme Court this morning dismissed Emulex Corp. v. Varjabedian a week after oral argument, passing on an opportunity to clarify the standard of liability under the securities laws for misleading disclosures about tender offers. Because the Supreme Court’s order dismissing the case is only a single line – stating that the case has been “dismissed as improvidently granted” – there is no way to know for sure why the court disposed of the case this way.
Having said that, the discussion at the argument offers a possible basis for dismissal. As I explained in my preview, the justices granted review in this case to decide whether it is enough for investors who challenge a misleading disclosure in connection with a tender offer to show that the defendants acted negligently. Most of the lower courts have required “scienter,” a securities-law concept that comes close to requiring proof that the disclosure was intentionally misleading. The lower court in this case, though, held that the investors could challenge a merely negligent disclosure. The Supreme Court granted review to resolve that disagreement.
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The transcript of oral argument in Department of Commerce v. New York is available on the Supreme Court’s website.
As it turns out, oral argument in Fort Bend County v. Davis was not the most headline-grabbing Title-VII-related news emanating from the Supreme Court yesterday. Disagreement among the justices seemed relatively muted as they wrestled with whether the requirement that employment discrimination plaintiffs present their claims to the Equal Employment Opportunity Commission before filing lawsuits is a jurisdictional prerequisite or merely a claim-processing rule.
Raffi Melkonian for respondent (Art Lien)
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We live-blogged as the Supreme Court released its decision in Emulex Corp. v. Varjabedian, which the justices dismissed as improvidently granted. The transcript is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
Today is a rare three-argument day at the Supreme Court. This morning, the justices will hear 80 minutes of argument in one of the term’s marquee cases, Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. Amy Howe had this blog’s preview. Sarah Evans and Kathryn Adamson preview the case for Cornell Law School’s Legal Information Institute, and Subscript Law has a graphic explainer. Ariane de Vogue reports at CNN that “[t]he justices will hear the administration’s claims that the question is necessary to better comply with federal voting rights law, versus arguments by critics who say it represents a veiled attempt to intimidate noncitizens and Hispanic households and will lead to a decrease in response rates.”
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In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly reviews the latest SCOTUS news before providing deeper coverage with Mark Walsh of last week’s oral argument in Iancu v. Brunetti, a First Amendment challenge to the ban on registration of “immoral” or “scandalous” trademarks.
Scholars of the Supreme Court often debate the role of lawyers in Supreme Court decision-making. For an attitudinalist, the justices’ preferences make all (or at least most of) the difference. According to this theory, justices will often vote based on their preferred policy direction, which minimizes the role of advocacy. More recent studies show that such a view, however, might obscure the impact lawyers have on Supreme Court output. Surprisingly, these two views are not necessarily mutually exclusive. Attorneys may also signal particular positions to the justices. If certain repeat Supreme Court attorneys take similar positions before the justices over time, the justices might presuppose such associations in advance of reading an advocate’s argument in the form of a brief.
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