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Live blog of opinions | June 22, 2018 (with First Mondays)

We live-blogged as the Supreme Court released opinions in Carpenter v. United States, Currier v. Virginia, Ortiz v. United States and WesternGeco LLC v. ION Geophysical Corp. Guest bloggers from First Mondays joined us from 9 to 9:45 a.m.

3rd & 7 37yd

Let's get this party started! Coming at you live from STL MO. Any St. Louisans in the house?

by Dan Epps 6/22/2018 1:00:22 PM
Good morning, everyone, and welcome back! The Supreme Court will release more opinions at 10:00am today; until then, we'll be live-blogging and taking your questions. I'm Ian Samuel, a lecturer at Harvard Law School (and soon-to-be professor at Indiana University), and co-host of First Mondays.

by Ian Samuel 6/22/2018 1:00:34 PM
So....considering everything this term, how does this sound for a likely lineup? The February seems hardest to predict at this point, as it depends on what the actual decision says.

Roberts - Carpenter
Breyer - Florida
Kagan - Dalmazzi

Janus - Alito, Ginsburg, or Gorsuch
Ohio - Ginsburg, Alito, or Kagan
Currier - Thomas, Kagan, or Ginsburg

Thomas - NIFLA
Roberts - Trump
Thomas - Abbott
Alito - WesternGeco

by Greg 6/22/2018 1:01:00 PM
Just saw that Justice Thomas is meeting with Pence today at lunch. Is that normal? Any chance he's sharing some big news?

by AH 6/22/2018 1:02:32 PM
As a newly subscribe amicus to First Mondays, it's been really cool following the live blog with you guys this week!

by mpgronseth 6/22/2018 1:02:59 PM
How rare is a third opinion day in a week? More to my concern: is SCOTUS being exceptionally slow this term? If so, why? There also seems to be more punting than usual. I’d appreciate it if you could share a hypothesis-explanation.

by Hugo 6/22/2018 1:04:00 PM
Waiting for Carptener, Janus, & the other biggies like…

by Ian Samuel 6/22/2018 1:04:13 PM
Are there just opinions today, or opinions and orders?

by Jay Riestenberg 6/22/2018 1:04:39 PM
If Carpenter is not issued today, what should 4A nerds do this weekend to alleviate their disappointment?

by APD 6/22/2018 1:05:27 PM
Are the potential decisions for Janus as wild as they could be or do you believe it will fall somewhere in the middle? What is most likely to least likely?

by Scott Sternal 6/22/2018 1:06:30 PM
So Dan is punting on the punting question?

by INFINITE GLORY 6/22/2018 1:07:05 PM
Good Morning Blog.

by Eric Citron 6/22/2018 1:08:16 PM
IF we were to get a retirement announcement next week, when would you estimate Trump would announce his nominee?

by ByeSCOTUS 6/22/2018 1:08:19 PM
If the Court adds additional opinion days next week when is the earliest we will know?

by AP 6/22/2018 1:08:32 PM
Interesting article on Slate about Kagan today. Interesting premise is that some of her votes with the conservatives may be to ameliorate what would be harder rulings.

slate.com

by Chris In England 6/22/2018 1:09:34 PM
so... assuming gorsuch does have weird views on janus and is writing for the liberals.... what do you think he'd actually be saying?

by ar 6/22/2018 1:09:43 PM
When do the justices' clerks wrap up their clerkships? Do they hold down the fort while their bosses are touring Europe or are they done in early July too?

by G 6/22/2018 1:11:03 PM
Why do you think they didn't issue an opinion on the Texas gerrymandering case when they did the others on Monday? Do you think they will also punt this one as well?

by TheIntern 6/22/2018 1:11:27 PM
#WaitingForLeah

by cwgivens21 6/22/2018 1:12:20 PM
The Court is holding at least a few third-party doctrine cases for Carpenter. Are those likely to be GVR'd?

by Sally 6/22/2018 1:12:45 PM
My memory from reading this blog is that on the second-to-last day, the Chief usually announces that the term will conclude on the next opinion day, e.g., [We stand adjourned until Monday] at which point we will adjourn for the remainder of [OT 18].

by LegalBySegal 6/22/2018 1:13:10 PM
What are your hours like as a Supreme Court clerk? How much does it vary by chambers?

by Matt 6/22/2018 1:14:00 PM
Also, glad you're sporting the avatar from the start, Ian. You're growing up.

by G 6/22/2018 1:14:04 PM
With so many many cases, shouldn't the justices have more clerks? Is there a limit?

by SwanMan 6/22/2018 1:14:26 PM
Please speculate wildly for me and give me your guesses on number of boxes and opinions today.

by G 6/22/2018 1:15:14 PM
Following the liveblog on opinion days counts as studying in law school, right?

by zobo 6/22/2018 1:15:48 PM
If we don’t get Carpenter today I’m starting a riot.

by Nate Riley 6/22/2018 1:16:18 PM
I'm applying for CLE credits for following the liveblog.

by LegalBySegal 6/22/2018 1:16:34 PM
Which justices work their clerks the hardest?

by guest 6/22/2018 1:16:46 PM
how well, if at all, do you get to know the other justices when you're clerking?

by ar 6/22/2018 1:16:55 PM
Has your mind changed with regards to AMK retirement given Rick Hasen's tweets on Gill?

by Auer 6/22/2018 1:17:14 PM
Bigger deal: Kennedy inviting a challenge to clarify Chevron, or Alito arguing vigorously that it should have been applied?

by AP 6/22/2018 1:18:37 PM
Of what's left, which opinion is each of you most interested in?

by G 6/22/2018 1:19:26 PM
It's true the number of argued cases is manageable or low, but I assumed not being in the cert pool meant more work and maybe having a fifth clerk would be reasonable.

by SwanMan 6/22/2018 1:20:15 PM
You set yourself up for this Q, Dan: which say no? Who are the cranks? Who’s shy?

by Hugo 6/22/2018 1:21:29 PM
Dan and Ian, love you, love the show, keep doing great work. Ian, how are you enjoying Hoosier life (assuming you are there)? I'll hang up and listen for my answer. Thanks!

by Phil 6/22/2018 1:22:27 PM
Just a reminder: we don't know what opinions are coming today. All we can do is speculate. We're just as eager as all of you to find out at 10AM Eastern!

by Dan Epps 6/22/2018 1:22:46 PM
can you explain what the 'cert pool' is?

by Chris In England 6/22/2018 1:22:48 PM
If we don't get all the opinions by next Monday, I'm starting a riot

by Jos Malig-on 6/22/2018 1:23:11 PM
Who got to keep the Souter note?

by EKNY 6/22/2018 1:23:28 PM
Is it common for opinions to come out on Friday? I'm an intern and have been assigned to track the opinions as they come out, and had only been following the blog on Mondays! Hope I didn't miss anything ...

by AG 6/22/2018 1:25:04 PM
Totally a not legal Q - how big is the back-house non-legal staff of SCOTUS? Big? Small? Pretty distinct from the legal staff?

by Ben F 6/22/2018 1:25:59 PM
Back to Gill, earlier this week. It seems to me that Chief Justice Roberts fatally wounded the "efficiency gap", but no one has noticed yet...

Consider that the "efficiency gap" ("EG") does not work for single districts. (For example, a very competitive district with a split of 51% party A and 49% party B would have an off the charts high EG of 48%, whereas a grotesquely packed district of 75% party A and 25% party B would have an ideal EG of 0%, which is the opposite of how the EG has been advertised...)

Any thoughts?

by kramartini 6/22/2018 1:26:14 PM
I've seen a lot of prognostication that puts Thomas as the one writing Abbott. What do y'all think is the chance that the court rules for Perez?

by AntCon 6/22/2018 1:26:26 PM
Where do each of you tend to fall on the political spectrum? More liberal, more conservative?

by Chris in TX 6/22/2018 1:27:17 PM

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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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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
  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.
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Cases argued 43

Cases decided 9

Summary reversals 2

Merits cases granted to date 73

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6	7 Orders MERCK SHARP & DOHME CORP. V. ALBRECHT (17-290) OBDUSKEY V. MCCARTHY & HOLTHUS LLP (17-1307)	8 HERRERA V. WYOMING (17-532) FOURTH ESTATE PUBLIC BENEFIT CORP. V. WALL-STREET.COM, LLC (17-571) Opinions	9 FRANCHISE TAX BOARD OF CALIFORNIA V. HYATT (17-1299)	10	11 Conference	12
13	14 Orders THACKER V. TENNESSEE VALLEY AUTHORITY (17-1201) RIMINI STREET INC. V. ORACLE USA INC. (17-1625)	15 HOME DEPOT U.S.A. INC. V. JACKSON (17-1471) AZAR V. ALLINA HEALTH SERVICES (17-1484) Opinions	16 KNICK V. TOWNSHIP OF SCOTT, PENNSYLVANIA (17-647) TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION V. BLAIR (18-96)	17	18 Conference	19
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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.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
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Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
National Press Club Award
Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
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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 | June 22, 2018 (with First Mondays)

We live-blogged as the Supreme Court released opinions in Carpenter v. United States, Currier v. Virginia, Ortiz v. United States and WesternGeco LLC v. ION Geophysical Corp. Guest bloggers from First Mondays joined us from 9 to 9:45 a.m.

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

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Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

Webby Award