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Live blog of opinions | April 17, 2018

This live blog features discussion of the opinions in three argued cases that were released today -- Sessions v. Dimaya, Wilson v. Sellers and United States v. Microsoft.

3rd & 7 37yd

Good morning and welcome to our live blog.

by Andrew Hamm 4/17/2018 1:43:54 PM
Good morning, everyone! It's a cold and gloomy day here at the Court.

by Amy Howe 4/17/2018 1:47:04 PM
Thank you Andrew, good morning :)

by Nason 4/17/2018 1:47:41 PM
We are expecting one or more opinions in argued cases this morning. As is almost always the case, we don't know which opinions or how many.

by Amy Howe 4/17/2018 1:48:22 PM
Good morning Amy and Andrew! Here too in Michigan, snowy! Correct me if I am wrong, the Supreme Court agreed to release the audio recording for Hawaii v Trump oral argument couple hours after its conclusion, correct?

by Al 4/17/2018 1:48:29 PM
Random question, how do you guys know what days we might get opinions?

by Is it spring yet? 4/17/2018 1:48:59 PM
What is the real deal with Justice Kennedy's law clerk hiring? I read at Above the Law that he has hired 4 new clerks for next term, but read a different article that he has only hired 1. Any more information?

by John 4/17/2018 1:51:48 PM
"The justices once again did not act in Azar v. Garza" You must have that on a hotkey by now.

by Electric Dragon 4/17/2018 1:53:03 PM
Two boxes today!

by Amy Howe 4/17/2018 1:54:08 PM
by Andrew Hamm 4/17/2018 1:54:29 PM
For those of you who are new or new-ish here, the number of boxes is a rough proxy for how many opinions we might get.

by Amy Howe 4/17/2018 1:54:31 PM
Any idea what's taking Garza so long? It's been since November when it was filed, and they've had the record for weeks now.

by Nathan Curtiss 4/17/2018 1:54:32 PM
by Andrew Hamm 4/17/2018 1:54:53 PM
Just heard the five-minute buzzer.

by Amy Howe 4/17/2018 1:54:57 PM
iirc you did a special livefeed during the Obergefell oral argument. Anything like that planned for Trump v. Hawaii, or will you let the audio recording do the job?

by James 4/17/2018 1:55:02 PM
Who decides on the early audio release? The clerk? It seems so subjective and lacking in neutrality when the court declares in advance in this way that it has determined a case to be more important than another.

by Yes it's spring. 4/17/2018 1:55:51 PM
@AndrewHamm What if we're here every blog day for all opinions?

by Nathan Curtiss 4/17/2018 1:55:56 PM
Are you able to blog inside the courtroom, or is there a media room nearby?

by Jason 4/17/2018 1:56:40 PM
2 boxes = ~ how many opinions?

by Zach 4/17/2018 1:57:20 PM
How soon after a hearing are audio recordings available? I'm here for South Dakota v. Wayfair.

by Ryan 4/17/2018 1:57:52 PM
Headed in to wait for opinions.

by Amy Howe 4/17/2018 1:58:24 PM
The waiting is the hardest part.

by VictimOrTheCrime 4/17/2018 2:02:03 PM
First opinion is Sessions v. Dimaya, from Kagan.

by Amy Howe 4/17/2018 2:02:18 PM
It is a long decision, and the holding is complicated.

by Amy Howe 4/17/2018 2:02:28 PM
It is (and I am summarizing this broadly, because there are a lot of opinions) 5-4: Kaqan, Breyer, Sotomayor, Ginsburg, and Gorsuch.

by Amy Howe 4/17/2018 2:03:29 PM
The lower court's judgment is affirmed.

by Amy Howe 4/17/2018 2:03:49 PM
The Court holds that the residual clause of Section 16 of the Immigration and Nationality Act, which defines an aggravated felony to include a "crime of violence," is unconstitutionally vague.

by Amy Howe 4/17/2018 2:04:35 PM
Here is a link to the opinion in Sessions v. Dimaya. Kevin Johnson of UC Davis School of Law will have our analysis:
https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf

by Andrew Hamm 4/17/2018 2:05:13 PM
This follows on the Court's decision in Johnson v. United States in 2015, holding that a similar provision in the Armed Criminal Career Act was also unconstitutional.

by Amy Howe 4/17/2018 2:05:18 PM
Gorsuch has a separate opinion concurring in part and in the judgment.

by Amy Howe 4/17/2018 2:05:39 PM
Roberts dissents, joined by Kennedy, Thomas, and Alito. Thomas also has a dissenting opinion joined by Kennedy and Alito.

by Amy Howe 4/17/2018 2:06:08 PM
Prof. Johnson seems to predicted this result. www.scotusblog.com

by krs 4/17/2018 2:07:01 PM
Breyer has the ruling in Wilson v. Sellers, a federal habeas case.

by Amy Howe 4/17/2018 2:07:16 PM
The decision of the 11th Circuit is reversed and remanded.

by Amy Howe 4/17/2018 2:07:34 PM
The vote is 6-3.

by Amy Howe 4/17/2018 2:07:46 PM
The court holds that a federal habeas court reviewing an unexplained state-court decision on the merits should "look through" that decision to the last related state-court decision that provides a relevant rationale and then presume that the unexplained decision adopted the same reasoning. The state can rebut that presumption by showing that the unexplained decision most likely relied on different grounds that the reasoned decision below.

by Amy Howe 4/17/2018 2:08:57 PM
Here is a link to the opinion in Wilson v. Sellers. Steve Vladeck from Texas Law will have our analysis:
https://www.supremecourt.gov/opinions/17pdf/16-6855_c18e.pdf

by Andrew Hamm 4/17/2018 2:09:41 PM
Aren't opinions issued in order of seniority?

by Ben 4/17/2018 2:09:49 PM
The justices have a short 3-page per curiam in US v. Microsoft.

by Amy Howe 4/17/2018 2:10:00 PM
Here is the opinion in US v. Microsoft. Amy will have our analysis:
https://www.supremecourt.gov/opinions/17pdf/17-2_1824.pdf

by Andrew Hamm 4/17/2018 2:11:01 PM
The Court holds that because the president has signed the CLOUD Act, which provides (among other things) that an e-mail service provider must disclose communications even when they are located outside the United States, there is no longer a live dispute between the parties.

by Amy Howe 4/17/2018 2:11:09 PM
Therefore, the Second Circuit's decision is vacated; the court is sending the cases back to the lower court with instructions to vacate the district court's orders and then to direct the district court to dismiss the case as moot.

by Amy Howe 4/17/2018 2:11:58 PM
This is not a big surprise given the passage of the CLOUD Act and the briefs filed by the US and Microsoft. It is the last opinion of the day; they are now moving on to bar admissions and then oral arguments.

by Amy Howe 4/17/2018 2:12:30 PM
So this means that there are only 2 opinions left from October oral arguments? And the only 2 Justices that have not yet written for October are Kennedy and...?

by Ashley Falls 4/17/2018 2:12:51 PM
Now that all Nov cases are decided, does Kennedy, Roberts, and Gorsuch not offering opinions from that month make them more likely to write for the Dec. and April sittings?

by MarkV 4/17/2018 2:13:55 PM
Bloomberg is reporting that Justice Sotomayor broke her shoulder

by Evan Lee 4/17/2018 2:14:40 PM
Okay, that's all we have for today. We'll have more on today's decisions, as well as more on today's oral arguments, later on. And we expect to be back here for a live blog and opinions tomorrow. Thanks so much for joining us today!

by Amy Howe 4/17/2018 2:16:48 PM
Thank you to everyone for joining us today. I'm shutting the live blog down now.

by Andrew Hamm 4/17/2018 2:29:52 PM

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The Supreme Court released additional orders from the January 11 conference on Monday; the justices called for the views of the U.S. solicitor general in CSX Transportation Inc. v. Alabama Department of Revenue, Alabama Department of Revenue v. CSX Transportation Inc. and Toshiba Corp. v. Automotive Industries Pension Trust Fund.
On Tuesday, the justices released their opinions in New Prime Inc. v. Oliveira and Stokeling v. United States.
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- 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.
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- City of Escondido, California v. Emmons The U.S. Court of Appeals for the 9th Circuit failed to conduct the analysis required by Supreme Court precedents in determining whether two Escondido police officers were entitled to qualified immunity.
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- 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.
- 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.
- 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.
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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
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- Department of Commerce v. U.S. District Court for the Southern District of New York
  Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., 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—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.
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  (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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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.

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