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Live blog of opinions | February 27, 2018

This live blog features discussion of the three cases decided on this day: Merit Management Group v. FTI Consulting Inc., Jennings v. Rodriguez, Patchak v. Zinke.

3rd & 7 37yd

The D.C. Circuit is affirmed.

by Amy Howe 2/27/2018 3:16:15 PM
Thomas has the judgment of the court, joined by Breyer, Alito, and Kagan.

by Amy Howe 2/27/2018 3:16:29 PM
This means that there is no majority opinion.

by Amy Howe 2/27/2018 3:16:59 PM
The opinion in Patchak v. Zinke is available on the Supreme Court's website at this link. Ronald Mann will have our analysis.
https://www.supremecourt.gov/opinions/17pdf/16-498_l5gm.pdf

by Andrew Hamm 2/27/2018 3:17:20 PM
Breyer files a concurring opinion, Ginsburg concurs in the judgment, joined by Sotomayor. And Sotomayor has her own opinion concurring in the judgment. Roberts dissents, joined by Kennedy and Gorsuch. I am now headed up for Microsoft. Thanks for joining us!

by Amy Howe 2/27/2018 3:17:52 PM
I am reading, but away from my computer right now. I also looked at the relationship between boxes to total opinion pages as well. Obviously there is a strong one, but it’s also not perfect - some days with more total pages had fewer boxes. Will try to find the data in time for the next live blog.

by Beaufort 2/27/2018 3:20:34 PM
I mooted one of the parties in Patchak, but now I frankly can't remember which side it was or exactly what the convoluted arguments in this case were. But I think the majority basically has it right. What happened here is that, while a case was still pending, Congress passed a law that essentially said how it wanted the case to come out. And because the case was still pending, that doesn't amount to Congress trying to revise a judicial opinion, just making new law, so that makes it kosher under Article III.

by Eric Citron 2/27/2018 3:20:56 PM
on mornings like this, do the justices leave the bench before starting to hear the scheduled case, or do they stay (and chat) until the appointed time?

by martin 2/27/2018 3:22:05 PM
They are on the bench, listening to their colleagues read the opinions

by Eric Citron 2/27/2018 3:22:18 PM
Solid:
Your comment "To be fair, this footnote was substantive -- this was not Scalia refusing to join a footnote just because it mentioned leg. history." is much more funny if you remove the period after "leg".

-Pedro

by Eric Citron 2/27/2018 3:23:00 PM
What does your crystal ball say about timing of Oil States LLC decision?

by Wherepatentsgotodie 2/27/2018 3:24:13 PM
by Eric Citron 2/27/2018 3:24:22 PM
by Eric Citron 2/27/2018 3:26:06 PM
I'm headed to NPR to talk to Joshua Johnson of 1A this morning so sadly can't stay to answer questions. See you on the next "likely" opinion day.

by Eric Citron 2/27/2018 3:27:43 PM
Hi, what is the next step in the American Express case yesterday? Will there be another round of arguments before a decision?

by unknown 2/27/2018 3:28:45 PM
Scotus used the same "expeditiously" language in US v Clinton. Josh Blackman flagged yesterday twitter.com

by benedict 2/27/2018 3:29:50 PM
We are not expecting opinions tomorrow, correct?

by Josh 2/27/2018 3:32:36 PM
When does the court share opinions on the Janus case?

by Union guy 2/27/2018 3:33:47 PM
Hi all -- we're going to close down the live blog for today. Thanks to everyone for joining us and we'll be back the next time the court releases opinions in argued cases.

by Andrew Hamm 2/27/2018 3:34:45 PM

Featured Posts

Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann
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The Supreme Court will release orders from the January 18 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.
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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.
- Culbertson v. Berryhill The Social Security Act’s fee cap of 25 percent of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.
- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
- 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.
- Shoop v. Hill Because Danny Hill’s intellectual disability claim must be evaluated based solely on holdings of the Supreme Court that were clearly established at the time the state-court decisions were rendered, the U.S. Court of Appeals for the 6th Circuit’s reliance on Moore v. Texas -- which was handed down much later -- was plainly improper.
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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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- 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.
- 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.
- 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 »
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Merits cases granted to date 73

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Justice Sotomayor at Harvard

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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Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Cases argued	43
Cases decided	9
Summary reversals	2
Merits cases granted to date	73

Editor's Note :

Scribble

Live blog of opinions | February 27, 2018

This live blog features discussion of the three cases decided on this day: Merit Management Group v. FTI Consulting Inc., Jennings v. Rodriguez, Patchak v. Zinke.

Featured Posts

Challengers urge justices to dismiss census case after district court ruling (Updated) – Amy Howe

Reargument analysis: Justices seek a “middle position” in takings litigation case – Miriam Seifter

Argument analysis: Justices have strong views about removal of class actions – Ronald Mann

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Merits Case Pages and Archives

Recent Decisions

Current Relists

Conference of January 18, 2019

Major Cases

Recent Special Features

Live Blog Archives

Jan. 2019

Download our App in the Apple Store

First Mondays see all

Videos see all

Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

Webby Award