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Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

Live blog of opinions | April 23, 2019

Live blog of opinions | April 23, 2019

We live-blogged as the Supreme Court released its decision in Emulex Corp. v. Varjabedian, which the justices dismissed as improvidently granted. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

We live-blogged as the Supreme Court released its decision in Emulex Corp. v. Varjabedian, which the justices dismissed as improvidently granted. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

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3rd & 7 37yd

Good morning, and welcome to our live blog, sponsored by Casetext.

by Amy Howe 4/23/2019 1:46:16 PM
It's a lovely day at the Supreme Court today, and a busy one. In just a few minutes, the justices will hear oral arguments in the challenge to the decision to include a question about citizenship on the 2020 census. But before that, we are expecting one or more opinions in argued cases at 10 am.

by Amy Howe 4/23/2019 1:47:03 PM
As is so often the case, we don't know how many opinions we are likely to get, nor do we know which ones.

by Amy Howe 4/23/2019 1:47:25 PM
Question-- why is oral argument audio from this term posted, but not opinion announcement audio?

by Penumbrian 4/23/2019 1:48:03 PM
Which cases if released today, would likely be the least remarked upon in both legal and general news?

by MarkV 4/23/2019 1:50:06 PM
Why are three different advocates arguing for the respondents in the census case? When was the last time that happened, and the other side only had one advocate?

by Gabriel 4/23/2019 1:52:02 PM
I was looking at the calendar and noticed that beginning next week, the Justices have their weekly conference on Thursdays instead of Fridays. Is that typical at the end of the term?

by Joe 4/23/2019 1:54:12 PM
One box today.

by Amy Howe 4/23/2019 1:55:08 PM
For those of you who are not regulars here, the number of boxes is a rough proxy for the number of opinions that we could get. More boxes generally = more opinions.

by Amy Howe 4/23/2019 1:55:42 PM
Also, as in the past, I may wind up "ghosting" you after the last opinion is released so that I can get upstairs for arguments. It's me, not you . . . .

by Amy Howe 4/23/2019 1:56:23 PM
Please let the justices know that I do not appreciate the fact that it has been three weeks since they released any opinions.

by Chris 4/23/2019 1:56:28 PM
re: Gabriel's question about the census case, I recall the petitioners in American Legion v Humanist Association had three different parties arguing for them, while the respondents had their sole attorney, and everyone seemed to be arguing completely different things. It was a doozy.

by Sammy! 4/23/2019 1:56:54 PM
A friendly shoutout, if he's reading, to Justice Stevens, who celebrated his 99th birthday this past weekend and continues to cement his status as the oldest ever retired Justice!

by JusticeStevensFan 4/23/2019 1:57:19 PM
[Breyer with the live blog on his phone backstage before going out for the session this morning]

by oxwof 4/23/2019 1:57:46 PM
Could the Court ever hear a criminal trial as part of its original jurisdiction? Would it have to impanel a jury?

by oxwof 4/23/2019 1:57:56 PM
About to go in. Will today be the day we get Gundy, which has been kicking around since October? We'll know very soon.

by Amy Howe 4/23/2019 1:58:26 PM
No Gundy today. Emulex v. Varjabedian, which was just argued last week, I believe, was dismissed as improvidently granted. Going upstairs now.

by Amy Howe 4/23/2019 2:01:34 PM
It's one sentence long, but here's the opinion in Emulex: https://www.supremecourt.gov/opinions/18pdf/18-459_4hdj.pdf

by Andrew Hamm 4/23/2019 2:02:44 PM
That's it? Oh well...

by runblakerun 4/23/2019 2:05:14 PM
Ronald Mann reported for SCOTUSblog after the oral argument in Emulex that "[s]everal justices were troubled that the broad argument against a private right of action was not raised properly in the lower courts."

by Edith Roberts 4/23/2019 2:05:16 PM
How often is a case improvidently granted? Does it reflect a mistake of the clerks who advocated granting it cert / the four justices who voted to grant it cert?

by Penumbrian 4/23/2019 2:05:39 PM
Regarding whether the Supreme Court could ever hear a criminal case, readers might be interested in United States v. Shipp, the only criminal trial in the Court's history. In 1906, the Court charged a Tennessee jailer with criminal contempt of court for allowing a mob to lynch a prisoner after the Court had granted a stay. en.wikipedia.org

by gues 4/23/2019 2:06:38 PM
There was a question about the next possible opinion day. Although sometimes the court releases opinions on the Wednesday of an argument week (i.e., tomorrow), they haven't made any sort of announcement at this point. So this means we are probably looking at Monday, April 29, when the court is already scheduled for a non-argument session, as the next opinion day. After that it would be Monday, May 13.

by Andrew Hamm 4/23/2019 2:09:22 PM
Alright, everyone, we are shutting down for today. We should have a lot of argument analyses to post today, with yesterday's cases and today's as well. The big case today as mentioned below is Dept. of Commerce v. New York. We hope to have Amy's report on that soon. Have a great rest of your morning!

by Andrew Hamm 4/23/2019 2:12:44 PM

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
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 meet for their May 23 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.
More Petitions »
Recent Special Features
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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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

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