No surprise that Justice Gorsuch dissented -- in a 10th Circuit dissent from denial of rehearing en banc, he expressed his view that this provision of SORNA raised a nondelegation problem.
The Second Circuit's decision is reversed and remanded.
The question in this case was when the statute of limitations began to run in a case alleging that evidence had been fabricated against a commissioner of a county board of elections.
The Second Circuit ruled that the limitations period began to run when the evidence was used against him, so that a civil rights case for fabricating the evidence was too late.
The Court holds instead that the limitations period did not begin to run until McDonough, the commissioner, was acquitted, so it reverses.
Interesting dissent line-up in McDonough: Thomas, Kagan, and Gorsuch.
Sotomayor's opinion was joined by Roberts, Ginsburg, Breyer, Alito and Kavanaugh. Thomas dissents, joined by Kagan and Gorsuch.
Thomas's dissent says that the court should have dismissed his petition as improvidently granted because McDonough did not specify which constitutional right was violated.
We have the peace cross case. Justice Alito has the opinion, which appears to have a lot of different parts.
The upshot is that the Fourth Circuit is reversed and remanded.
Ginsburg and Sotomayor are the only full dissenters in the case.
This is the case of a cross erected in what is now a traffic circle to commemorate fallen soldiers in World War I. The Fourth Circuit agreed with a group of local residents and the American Humanist Association that the memorial is unconstitutional, but today the Court reversed, so the cross can stay.
Justice Alito looks to history, appearing to draw an analytical line between maintenance of long-established monuments with potential religious significance and erection of new ones.
It looks like Alito loses Kagan for a section of the opinion (II.A) harshly critical of the Lemon test.
Court says that cross "has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions. And contrary to respondents' intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim."
This is not a big surprise after the oral argument, nor is it particularly surprising that Breyer and Kagan are on board for at least part of the decision.
We are still expecting at least one more opinion.
The outcome turns heavily on the fact that the cross has been around for a long time and seems to establish a general presumption of constitutionality for old monuments of this sort: "The passage of time gives rise to a strong presumption of constitutionality."
Justice Ginsburg is reading from her dissent now. For those of you who are not regulars here, reading a dissent from the bench is a statement, in and of itself.
"As I see it," Ginsburg says in her dissent, "when a cross is displayed on public property, the government may be presumed to endorse its religious content."
When she was Solicitor General, Justice Kagan argued in defense of a different cross-shaped monument (and won). I wonder how much that experience influenced her view of the law in this area.
Justice Ginsburg, who is Jewish, rejects the idea that the cross is a secular symbol: "The cross was never perceived as an appropriate headstone or memorial for Jewish soldiers and others who did not adhere to Christianity."
Kavanaugh and Breyer's concurrence emphasize that they don't view the Lemon test as universally applicable.
Ginsburg's dissent includes an appendix with (blurry) pictures of the cross, a map of the location, other memorials nearby, and headstones in the American cemetery in Belgium.
Headed back in for the next (final?) one.
Thomas repeats his view that the Establishment clause does not apply to the States, and only applies to laws (not monuments).
And, in the final opinion of the day, we have PDR Network v. Carlton & Harris Chiropractic, from Justice Breyer.
The Fourth Circuit is reversed and remanded.
Gorsuch writes that there should be no standing to sue for people who are offended at the presence of religious symbols. Thomas joins him.
We are back tomorrow at 10 am, by the way.
This had been a case about whether the Hobbs Act bars a defendant in a private enforcement act from challenging the FCC’s legal interpretation of Telephone Consumer Protection Act. But the Court says that the extent to which a 2006 order from the FCC binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the court of appeals, so the Supreme Court sends it back for the court of appeals to resolve these issues.
The PDR Network case was (sort of) unanimous: Breyer's opinion was joined in full by Roberts, Ginsburg, Sotomayor, and Kagan. Thomas filed an opinion concurring in the judgment, joined by Gorsuch, while Kavanaugh filed an opinion concurring in the judgment that was joined by Thomas, Alito and Gorsuch.
It's basically a punt by the majority. All the interesting stuff is in the separate writings.
Yes, to be clear: More opinions tomorrow at 10 am. Hooray!
I am going to get to work on my coverage of the cross case. There are other wonderful commentators here who can hopefully keep answering your questions. Thanks so much for joining us, and I'll see you tomorrow!
In PDR, Thomas says reading the Hobbs Act to require courts to accept an agency's interpretation of a statute (because it was not challenged when it was promulgated) would likely be unconstitutional.
In response to some questions earlier, I can report, per Mark Walsh, who was in the courtrooom, that Justice Ginsburg was indeed wearing her dissent jabot today,
Hi all, I am shutting us down. We will have analyses of today's four opinions today, a "view" from the courtroom by Mark Walsh, and the start of a symposium of outside contributors on the American Legion decision.
And we should be back with more live-blogging tomorrow. Have a great day!
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