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Live blog of orders | June 28, 2018

We live-blogged to discuss Justice Anthony Kennedy’s retirement and the Supreme Court’s orders from its final conference of the term. Former Kennedy clerks Jeffrey Pojanowski and Michael Dorf joined us. The justices added seven new cases to their merits docket for next term: Herrera v. Wyoming, Fourth Estate Public Benefit Corp. v. Wall-Street.com, Gamble v. United States, Nieves v. Bartlett, Franchise Tax Board of California v. Hyatt, Obduskey v. McCarthy & Holthus LLP and Merck Sharp & Dohme Corp. v. Albrecht.

3rd & 7 37yd

How about a poll for "Who saw this coming?" -- Put me down for "Was aware it was a possibility but still shocked."

by eric in Chicago 6/28/2018 12:30:46 PM
Hey there everyone. I'm happy to join my friends at SCOTUSblog this morning to try to answer questions about Justice Kennedy's retirement and other matters.

by Michael Dorf 6/28/2018 12:30:53 PM
Hello everyone! Long-time reader, first-time baller. Excited to talk about the Supreme Court, Justice Kennedy's retirement, etc.

by Jeffrey Pojanowski 6/28/2018 12:32:47 PM
I thought the two solo concurrences earlier in the week were the give away that he was done.

by David Cheney 6/28/2018 12:33:20 PM
How keenly aware do you think Justice Kennedy is of his pivotal votes in such areas as abortion rights and affirmative action, and what role, if any, do you think that played in his decision?

by Bryan Sells 6/28/2018 12:34:06 PM
They did have a valedictory feel to them, so I cannot say I was surprised. But I also would not have been surprised if he stayed on and just felt the need to communicate what he said.

by Jeffrey Pojanowski 6/28/2018 12:34:23 PM
Good morning from your "view" from the courtroom contributor!

by Mark Walsh 6/28/2018 12:34:58 PM
(I was talking about the concurrences. Still figuring out the "comment reply" function.

by Jeffrey Pojanowski 6/28/2018 12:35:11 PM
Is there a resource SCOTUS commentators use to get info on potential nominees? It’s a bit difficult for a non-lawyer to get anything more than superficial information

by Vince 6/28/2018 12:36:11 PM
So, any informed speculation about why Kennedy's retirement wasn't announced from the bench? I think it's because he wanted to give the president the courtesy of a personal notification, and he didn't want to risk Trump leaking it before the Court met.

by mpgronseth 6/28/2018 12:38:51 PM
Mark -- your posts are perhaps my favorite part of the blog. Thanks for your work!

by eric in Chicago 6/28/2018 12:39:35 PM
Looking beyond the divisive social issues, what major but less glamorous (i.e. administrative law, civil procedure) precedents are most likely to be overturned by the post-Kennedy court?

by Law Student 6/28/2018 12:39:43 PM
So, here are a couple of observations from the courtroom yesterday, some of which I included in yesterday's "view". The main one is that when Justice Kennedy's wife, Mary, arrived at about 9:55 am, with what appeared to be three grandchildren in the VIP box and other family members nearby, my outlook on the justice's retirement changed.

by Mark Walsh 6/28/2018 12:40:45 PM
Some of my colleagues in the press section let out some expletives when we saw that. I'm not going to say who.

by Mark Walsh 6/28/2018 12:41:14 PM
Do you think that Senator McConnell knew about the impending retirement when he canceled the Senate's August recess?

by Bryan Sells 6/28/2018 12:41:41 PM
Long-time reader, first-time commenter. Mitch McConnell says he wants to move quickly on confirmation. Assuming the Senate approves a Justice sometime in October, how does that fit into the SCOTUS calendar (e.g., hiring clerks, taking new cases)?

by Patrick 6/28/2018 12:42:38 PM
Mark--those were my expletives. You could hear them from a thousand miles away.

by Footnote 3 6/28/2018 12:43:07 PM
When do you think he informed the other Justices? Their statements seemed rushed.

by EKNY 6/28/2018 12:43:18 PM
In light of the retirement/likely replacement, what already added cases for OT18, or cases in the pipeline, take on a whole new light?

by eric in Chicago 6/28/2018 12:45:55 PM
Speculation that Justice Kennedy retired, in part, because he saw difficult decisions ahead on the balancing of religious rights against the civil rights of the gay community, which is perhaps an issue he was not comfortable or prepared to decide?

by KB 6/28/2018 12:47:11 PM
I was of the school that if AMK was going to retire, he would have announced it in April or May, as four of the last five justices to retire have done. Kennedy joined the court in midterm, after the Robert Bork and Douglas Ginsburg matters. He has to know that retiring at the end of the term makes it at least somewhat dicier to have a replacement confirmed by the First Monday in October.

by Mark Walsh 6/28/2018 12:47:43 PM
Do the Democrats have the numbers to actually block Trump's nominee at any step of the nomination process?

by Swiss Casey 6/28/2018 12:48:31 PM
Off-topic: What will be the biggest news from the orders list today?

by Don Jr. 6/28/2018 12:49:20 PM
Notwithstanding the tradition of trying to retire when the party that put you on the supreme court is the same as the party that will replace you, i did not think JK would let Trump choose.

by Footnote 3 6/28/2018 12:51:23 PM
There seems to be near-universal agreement that Justice Kennedy's retirement will lead soon to the end of affirmative action. What other areas of civil rights do you think may be in jeopardy? Fair housing? Voting rights? Disability?

by Bryan Sells 6/28/2018 12:51:47 PM
It seemed like Amy's post on AMK was very thorough and promptly written - so thorough that it was probably mostly pre-written. I know obituaries are pre-written, but are these retirement pieces pre-written also as a matter of practice. E.g., if Sotomayor decided to hang it up today, is there a retirement article draft kicking around somewhere?

by LegalBySegal 6/28/2018 12:52:52 PM
Is likely that Trump will nominate someone from the short list that he created for Scalia's replacement or does that process start all over?

by LIT: Lawyer In Training 6/28/2018 12:54:33 PM
It was definitely smart for Supreme Court reporters to have a Kennedy retirement story in the can. I had one for Education Week focusing on Kennedy and education issues, naturally. Here is the published product:
Justice Kennedy Retiring From High Court, Had Deep Imprint in Education Arena
Education WeekA highly influential moderate-conservative at the center of the U.S. Supreme Court for three decades, Justice Anthony M. Kennedy wrote major opinions on race, religion, and other areas of public education.

by Mark Walsh 6/28/2018 12:54:53 PM
Do you think we'll see Rowan County on the orders list?

by Rowan County Watcher 6/28/2018 12:55:37 PM
Here's a thought about how quickly the Court is likely to move to change the law in areas where Justice Kennedy was to the left of CJ Roberts: Given the Chief Justice's concerns for the integrity and perceived integrity as a somewhat non-political institution, I would expect him to want to go somewhat slowly. However, he will not necessarily control the Court's agenda. The Rule of 4 will allow the four justices to his right (Thomas, Alito, Gorsuch, and whoever the new justice is) to grant cert in abortion, LGBT rights, affirmative action, death penalty, and other cases in short order. I think Roberts might have some ability to slow Alito down if Roberts really wants to, but I doubt he can slow the others.

by Michael Dorf 6/28/2018 12:56:55 PM
Professors Pojanowski and Dorf - I’m a 3L who has had the opportunity to study many of Justice Kennedy’s opinions (as well as articles both of you have written). Which of his opinions, or parts of his legacy, do you most hope will endure 20 years from now?

by Roy 6/28/2018 12:57:11 PM
Is there any prediction on how Kennedy's retirement will affect summer cert. petitions? Considering he is a cert. pool member, I would think it would have little effect. But I imagine that it is at least possible that a new Justice would be confirmed before the long conference and would need to address pending petitions.

by Avoiding Bar Studying 6/28/2018 12:58:45 PM
Who, if anyone, from Trump's list of potential nominees do you think would be the least controversial? The most? (Recognizing that policy preferences will ensure that there is great controversy no matter who is nominated.)

by cmholloway 6/28/2018 12:59:43 PM
Sorry, that comment was meant in response to Avoiding Bar Studying's question about summer cert. petitions. You're going to have to get back to bar studying soon, ABS!

by Mark Walsh 6/28/2018 1:01:29 PM
When is AMK's retirement party?

by EKNY 6/28/2018 1:02:37 PM
@BryanSells Many think that ending affirmative action would advance civil rights...

by kramartini 6/28/2018 1:02:38 PM
Does retiring on July 31st change much? Do you think it'd be any different if he stayed on until they confirm his replacement?

by EKNY 6/28/2018 1:03:17 PM
It will be interesting to see the Democrats squirm if Amul Thapar is nominated. While Republicans don't care about race, only judicial philosophy, the Democrats claim to care about race a lot and can be expected to display considerable discomfort in opposing the first South Asian justice...

by kramartini 6/28/2018 1:03:20 PM
Judge Kavanaugh, the presumptive nominee, cast a recent anti-abortion vote in the high-profile case involving a 17yo immigrant. Do you think Sens. Collins and Murkowski will press him hard on that issue?

by Lifelong DC 6/28/2018 1:04:10 PM
EKNY, setting a specific retirement date avoids the personal limbo that some justices have faced because they said they would retire upon the confirmation of their successor.

by Mark Walsh 6/28/2018 1:05:12 PM
So if Janus held that my money cannot be used by an organization if I don't agree with their views/don't believe in what they stand for, does that mean I don't have to pay taxes if that money goes towards things that I do not like, like increased military budgets? Asking for a friend :)

by Just a Little Anarchy 6/28/2018 1:06:10 PM
Are there any qualified immunity cases left on the docket?

by Dale 6/28/2018 1:06:36 PM
I'm wondering what to make of Justice Kagan's dissent in the Wisconsin gerrymandering case. It was pitched to specifically to Justice Kennedy. Do you think she wrote it thinking he would remain on the bench? How closely guarded is news of retirement between the justices? Thanks for any insights!

by Sam 6/28/2018 1:07:17 PM
Conspiracy theory--Trump nominates someone controversial enough that Murkowski and Collins have to vote with 49 Democrats. Senate rejects nomination. GOP takes it to the stump and increases their Senate majority. Mitch McConnell has more breathing room to pick someone he couldn't have with only 50 votes to work with.

by Patrick 6/28/2018 1:08:54 PM
President Trump said he asked Justice Kennedy for his thoughts on who should replace him. Knowing Justice Kennedy, what do you suppose he said?

by Ninth-Justice Watcher 6/28/2018 1:09:02 PM

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- 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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  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.
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  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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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.

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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.
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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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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 orders | June 28, 2018

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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