The Supreme Court’s 2018-2019 term is almost complete. Although less than two calendar weeks are left, a large portion of the court’s work is still unfinished. At this juncture, we have several intriguing stories, some unexpected results and much left unanswered. So far, the justices have resolved 45 of the term’s 69 argued cases. This leaves at least 24 decisions for the final two weeks, or about 35 percent of the court’s merits docket. Many of these are high-profile cases, including Department of Commerce v. New York, the census-citizenship-question case; American Legion v. American Humanist Association, which implicates the future of the establishment clause; the two cases examining political-gerrymandering practices, Lamone v. Benisek and Rucho v. Common Cause; and Kisor v. Wilkie, which may dictate future jurisprudence surrounding judicial deference to administrative agencies.
It is important to note that the statistics for the term so far are preliminary, and they will change over the next two weeks. With that in mind, at this point in the term the court has presented us with some novel insights in the post-Kennedy era. Although many expected the court’s new conservative majority to overpower the four more liberal justices, such has yet to be the case (although if Justice Ruth Bader Ginsburg’s words from a recent speech ring true, such divisions still might play an important role in the remainder of the court’s decisions for the term).
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On June 28, at 9 a.m. EDT in Washington, D.C., the American Constitution Society will host a panel reviewing the Supreme Court’s October Term 2018. Panelists include Charlotte Garden, Gillian Metzger, Ngozi Ndulue, Daniel Tokaji and Jason Torchinsky; Thomas Goldstein will moderate the panel. More information, including registration instructions, is available here.
This week we highlight petitions pending before the Supreme Court that address, among other things, the standard for a plaintiff to meet the plausibility requirements of Federal Rule of Civil Procedure 8 and Ashcroft v. Iqbal, when a trial court should grant the press’s motion to access voir dire questionnaires, the proper classification of Voice over Internet Protocol under Brand X, and whether a state violates a biological parent’s rights under the 14th Amendment’s due process clause when it strips the parent of custody in favor of a former partner in certain circumstances.
The petitions of the week are:
18-1386
Issues: (1) Whether, in the absence of a Federal Communications Commission decision classifying Voice over Internet Protocol service as an information service, FCC policy can conflict with and pre-empt state regulation of VoIP service; and (2) whether VoIP service is a telecommunications service or an information service, under the appropriate functional test for classification determinations from Brand X.
18-1419
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issue: Whether an employee protected by the Fair Labor Standards Act must always allege wage violations averaged across a specific seven-day workweek, or whether an employee may plead a cause of action with alternative context-specific allegations to meet the plausibility requirements of Federal Rule of Civil Procedure 8 and Ashcroft v. Iqbal.
18-1428
Issue: Whether an application to a trial court by the press, as a surrogate for the public, in exercising its constitutionally required ability to be heard in opposition to a denial of the presumptive First Amendment right of access to voir dire questionnaires used to select the jury in a controversial murder prosecution may be denied by the failure of state criminal procedural rules to authorize standing for that purpose.
18-1431
Issue: Whether a state violates a biological parent’s rights under the 14th Amendment’s due process clause when it strips the parent of custody in favor of a former partner who is not the child’s biological or adoptive parent, and without affording a presumption that the parent is acting in the best interests of the child.
Yesterday the Supreme Court released the justices’ financial disclosure forms for 2018. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. For USA Today, Richard Wolf reports that “[t]he annual listing of investments, liabilities and potential conflicts of interest showed nothing unusual for the nine members of the nation’s highest court, who earn $255,300 (slightly higher for the chief justice).” Fix the Court notes that the “justices took 64 trips last year for which they received third-party reimbursements,” and that “it is assumed that the reimbursements for these jaunts was each greater than $390, the statutory reporting trigger, but that’s all the public knows, since the justices are permitted to omit reimbursement amounts from their reports.”
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The Administrative Office of the U.S. Courts released the justices’ annual financial disclosures for 2018 today. The forms do not provide a complete picture of the justices’ finances: They do not, for example, include the value of the justices’ homes, and the values of their stocks, investments and bank accounts are reported only in a range. But at the same time, the forms do offer a glimpse into how the justices spend their time off the bench – as well as potential conflicts of interest.
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With less than three weeks to go before the Supreme Court’s summer recess, the challengers in the dispute over the decision to add a question about citizenship to the 2020 census yesterday asked the justices to postpone their ruling in the wake of new evidence in the case.
In January, a federal district judge in New York barred the federal government from using the citizenship question on the 2020 census, ruling that the government’s conduct violated the federal laws governing administrative agencies. The federal government asked the Supreme Court to review that ruling, and the justices heard oral argument in the case in late April.
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For The Wall Street Journal, Jess Bravin reports that “[i]mmigrant-rights groups asked the Supreme Court on Wednesday to postpone ruling on their legal challenge to the addition of a citizenship question to the 2020 census until allegations that the query was intended to bolster Republican political advantages can be heard by a lower court.” Richard Wolf reports for USA Today that “[r]ather than decide the case on ‘an incomplete and misleading record,’ challengers asked the justices to send it back to a lower court for further fact-finding unless they are ready to strike down the citizenship question.” For The Washington Post, Robert Barnes writes that “[t]he motion filed Wednesday night is highly unusual but is representative of the enormous consequences of the decision and the politics surrounding it.”
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On June 13 at 4:30 p.m., the Historical Society of the District of Columbia Circuit presents the inaugural Judge Patricia M. Wald Program on Life and Law in the Courts of the D.C. Circuit. Appearing before Judges Judith Rogers and Gregory Katsas of the U.S. Court of Appeals for the District of Columbia Circuit, John Elwood and David Vladeck will re-enact the argument at the D.C. Circuit in the case that became known at the Supreme Court as Chevron v. Natural Resources Defense Council. The argument will be followed by a panel featuring Elwood, Vladeck, John Manning and Gillian Metzger; Christopher Walker will serve as moderator. More information about this event, which will be held at the E. Barrett Prettyman U.S. Courthouse, is available on this flier.
Kate Shaw is a law professor at Cardozo Law School. She clerked for retired Justice John Paul Stevens during the 2007-2008 term.
Last week, Justice John Paul Stevens sat down for a wide-ranging telephone interview with me. The occasion was the recent publication of his memoir, “The Making of a Justice: Reflections on My First 94 Years” (Little, Brown and Company, 2019). A lightly edited transcript of our conversation follows.
Question: Thanks so much for agreeing to do this, Justice. The book is wonderful, and it contains not only great biographical detail, but a lot of new insights for those of us who teach some of the cases you discuss in the book.
Justice Stevens: Well, anybody who is able to wade through the entire book is entitled to high praise.
Question: No, it’s very readable! So — will you tell me a little bit about why you decided to write the book?
Justice Stevens: I was just trying to think that through when you called. I really don’t know. I started to write about the party, on my 94th birthday. The project just grew after I started.
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Briefly:
- Ronald Mann analyzes Monday’s opinion in Return Mail Inc. v. United States Postal Service, in which the court held that the government is not a “person” who can challenge the validity of a patent under the America Invents Act, for this blog.
- Andrew Siegel has this blog’s analysis of Monday’s opinion in Parker Drilling Management Services. Ltd. v. Newton, in which the justices ruled that “the Outer Continental Shelf Lands Act only incorporates state law when federal law’s silence on a particular issue creates a ‘gap’ for state law to fill.”
- At The George Washington Law Review’s On the Docket blog, Alan Morrison maintains that the court’s ruling in Home Depot U.S.A. Inc. v. Jackson that, when original defendant files a counterclaim that brings new parties into a case, a new defendant cannot remove the case to federal court, “brings into focus significant misalignments of purposes concerning the law of removal.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.]
- Also at On the Docket, Monte Mills writes that although the outcome in Herrera v. Wyoming, in which the court held that the Crow Tribe retains its rights under an 1868 treaty to hunt in Wyoming’s Bighorn National Forest, “points to the possibility of a new and improved future for tribal rights before the Supreme Court, neither Mr. Herrera nor Indian law more broadly are out of the woods yet.”
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