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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

Allison Eid is an interesting choice. Does the fact that she's on the 10th Cir (where Gorsuch came from) hurt her chances at a nomination?

by Chris 6/28/2018 1:10:03 PM
Now that Janus has been decided, how long till the ruling flows down to include all unions, not just public sector ones?

by BJ 6/28/2018 1:10:57 PM
I don't know if you saw Jeffery Toobin's reaction to the news that AMK offered his thoughts on a successor, but he just laughed and laughed, adding that this would purely be a polite exercise on the president's part. VP Pence's tweet about seeking a successor in the mold of Justice Scalia was Exhibit A of the administration's outlook.

by Mark Walsh 6/28/2018 1:11:15 PM
Did Kennedy hire clerks for next term? What happened to them?

by Amit 6/28/2018 1:11:50 PM
@MarkWalsh No problem. I was just happy to see a question of mine finally make it through moderation after repeated failures this term, even if it isn't answered. :-)

by cmholloway 6/28/2018 1:12:41 PM
Are there any cases in the docket for the next term that Kennedy's retirement is particularly likely to affect?

by Kenny 6/28/2018 1:13:11 PM
Would a retired Justice Kennedy, in California, be able to sit on the Ninth Circuit there? If so, is he senior to all other judges there?

by Ninth-Justice Watcher 6/28/2018 1:13:46 PM
How at risk do you think Obergefell and Windsor are now...most of the talk among pundits has been about Roe.

by Zakofthe90s 6/28/2018 1:13:49 PM
Speaking for myself, one thing I think I will miss about Justice Kennedy is his compassion. As a lawyer, I often prefer the formalism (or at least the more rule-ish approach) you see in opinions from Justices like Kagan or Scalia. But Justice Kennedy's opinions, and his judicial thinking, were motivated by really thinking about and caring about the people impacted by his decisions, nationwide. That concern didn't always lead him where it would have led me or others, but you got the sense that it was present. It moved him towards the country's own moving political center because he shared many of the concerns that moved the country's zeitgeist over the course of his decades-long tenure.

by Eric Citron 6/28/2018 1:14:21 PM
Why did Kennedy wait until the end of the term to announce? People were racking their brain over it for so long.

by Matt 6/28/2018 1:17:32 PM
Why did Justice Kennedy retire so early? He seems to be healthy to have continued for quite sometime.

by Sri 6/28/2018 1:17:33 PM
My opinion on Justice Kennedy's retirement, I am glad he is going. By profession being a single-interest court watcher (tribal issues), Kennedy was one of the most anti-tribal voices on the Court, possibly from his time on the 9th Cir. His retirement opens the possibility of re-establishing tribal sovereignty in a meaningful way.

On other issues I care about, his retirement makes me pretty nervous.

by Chris 6/28/2018 1:18:39 PM
When I argued in the First Circuit and J. Souter was on the panel, he did not act in as the presiding judge over the session, and thus presumably was not the most senior justice. As best as the public can tell, being senior means sitting in the middle chair and letting the advocate know when he or she can start talking.

by LegalBySegal 6/28/2018 1:18:58 PM
As a practical matter I do not think Obergefell and Windsor are at much risk of being directly overruled. It's hard for me to imagine a case that would present that opportunity. I don't see any states moving to outlaw gay marriage again, nor do I see the political will for Congress to pass a new DOMA. What I can imagine is lack of movement on LGBT rights generally with respect to public accommodations, access to services, etc.

by Rob Stolworthy 6/28/2018 1:19:23 PM
Arlene’s flower would be my guess at the biggest thing affected by his retirement.

by #Barrett4SCOTUS 6/28/2018 1:19:44 PM
Slow news week, eh?

by oxwof 6/28/2018 1:20:11 PM
Do you think that once RBG sees that the court will be solidly 5-4 conservative for a generation, she will see there is little difference in a 6-3 court and a 5-4 court? Same question could be asked about Breyer.

by UnmodernedMan 6/28/2018 1:20:54 PM
The hot-button social issues, even if Roe and Obergefell are overturned, then become a state-by-state patchwork. Something may be legal/recognized in the State of Metro, but not in the State of Plains. In the short-term it raises a full faith and credit issue, but long-term trends (especially attitudes among Generation X and Millenials) show that these rights have a healthy future. Exhibit A is Ireland and their decisive referendums on SSM and abortion rights.

by Patrick 6/28/2018 1:21:16 PM
Do you think Justice Kennedy will make a lot of money in retirement? If so, how?

by EKNY 6/28/2018 1:21:25 PM
How does a retired justice riding circuit work? Is he invited by a circuit to join a particular case or panel? Or does he just decide "I would like to join this one" and heads to court?

by Jeff 6/28/2018 1:21:40 PM
And hello, everyone. Delighted to be back here for orders this morning, even if yesterday's events mean that I am entirely unprepared for them.

by Amy Howe 6/28/2018 1:22:07 PM
@Matt That's "auto-(IN)correct. :-D

by DPLC 6/28/2018 1:23:20 PM
Just when Amy thought she might some vacation this summer...

by Nathan Curtiss 6/28/2018 1:23:36 PM
@UnmodernedMan An RBG retirement under Trump would tarnish her rock-star image...

by kramartini 6/28/2018 1:24:28 PM
Do you think Thomas retires any time soon? It would be an ideological wash, but a 20+ year age difference.

by LegalBySegal 6/28/2018 1:24:50 PM
So thoughts on replacements? That’s the elephant in the chat. I personally favor Amy Coney Barrett.

by SCOTUSstuff 6/28/2018 1:25:14 PM
As a hypothetical: If another gay marriage case is granted cert, which could happen without the four liberal Justice or CJ Roberts, that would force the Court to hear the issue again. In Obergefell, CJ Roberts said in his dissent, "the Constitution has nothing to do with it".

My question is, is there an historical example where a Justice on the Supreme Court has changed a view that is so staunchly stated in an opinion? Put another way, is there really a chance that Roberts would rule in favor of same-sex-marriage (based on history)?

by Arkham19 6/28/2018 1:25:29 PM
Orders at 9:30?

by RAK 6/28/2018 1:26:19 PM
Kevin, which U.S. circuit has jurisdiction over Austria?

by Mark Walsh 6/28/2018 1:26:28 PM
I've been meaning to ask this for a while and keep forgetting. Do the justices actually sign the decisions? If so, When? And where are those signed versions kept?

by LegalBySegal 6/28/2018 1:26:32 PM
Okay, time for orders. Back in a few.

by Amy Howe 6/28/2018 1:28:48 PM
What I don't understand is how Justice Kennedy could look at a president like Trump—his daily lies and classlessness—and then look at his own decisions where he's been the bulwark or the pioneer, and say, "Yes, I want _this_ man to choose my successor." I have little doubt that, as a conservative, he wanted to be replaced by a Republican, but don't you think Kennedy knows that Trump will aim to undo a lot of his legacy with his next pick?

by Josh 6/28/2018 1:28:50 PM
Semi-related to Obergfell and Roe ... even if the court was to be packed with conservatives, it seems to me that rights, when granted, are extremely hard to take away. Is that right? So what, realistically, are the chances they could do it?

by Aakash Kumar 6/28/2018 1:30:49 PM
As a skeptic that Obergefell is in any danger of being overruled, I have been trying to come up with a hypothetical set of facts that would give a party standing to challenge the legality of two consenting persons of the same sex having a valid marriage. Anybody have any ideas?

by William Wilkinson 6/28/2018 1:31:09 PM
Okay, we have today's orders. There is a summary opinion in Sause v. Bauer, a case that has been kicking around so long that the attorney who filed it, James Ho, has now been confirmed to the court of appeals and issued opinions!

by Amy Howe 6/28/2018 1:31:27 PM
The Tenth Circuit's decision is reversed and remanded. This is a federal civil rights case filed by a woman who was cited for disorderly conduct and says that a police officer ordered her to stop praying.

by Amy Howe 6/28/2018 1:32:10 PM
Here's the order list:

https://www.supremecourt.gov/orders/courtorders/062818zr_k425.pdf

by Andrew Hamm 6/28/2018 1:32:15 PM
Is the "join" late in the process? Do they ever get rescinded?

by LegalBySegal 6/28/2018 1:32:52 PM
Lots of summary opinions. In NC v. Covington, a racial gerrymandering case, there is an unsigned opinion affirming in part and reversing in part. Thomas dissents, saying that he would have set the case for briefing and oral argument.

by Amy Howe 6/28/2018 1:33:24 PM
Justice Thomas dissents from the denial of cert. in Rowan County v. Lund, a legislative prayer case.

by Amy Howe 6/28/2018 1:34:06 PM
@WilliamWilkinson Kids contesting intestate distribution of property would have standing to challenge validity of SSM.

by kramartini 6/28/2018 1:34:15 PM
In Kaushal v. Indiana, the case of a lawful permanent resident who pleaded guilty to molesting his stepdaughter not knowing that it would lead to his deportation, and tried to withdraw his plea shortly after, the Court grants, vacates, and sends the case back to the lower court for it to reconsider in light of a 2017 case that came down before the Indiana appellate court's ruling in this case.

by Amy Howe 6/28/2018 1:35:21 PM
Justice Alito would have denied the petition; Thomas joined that opinion.

by Amy Howe 6/28/2018 1:35:41 PM
The justices are really cleaning up the docket here. There are denials in two death penalty cases, Jordan v. Mississippi and Evans v. Mississippi. Breyer dissents from the denail of cert.

by Amy Howe 6/28/2018 1:36:20 PM
The court lets another redistricting case stand: Harris v. Cooper. This was a NC partisan gerrymandering case.

by Amy Howe 6/28/2018 1:37:02 PM

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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

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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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Recent Decisions
- 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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Current Relists
- 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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Jan. 2019

Su	Mo	Tu	We	Th	Fr	Sa
		1 Holiday	2	3	4 Conference	5
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
20	21 Holiday	22 Orders Opinions	23	24	25	26
27	28	29	30	31

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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.
Sigma Delta Chi
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.
Silver Gavel Award
Awarded the Silver Gavel Award by the American Bar Association for fostering the American public’s understanding of the law and the legal system.
American Gavel Award
Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
Webby Award
Awarded the Webby Award for excellence on the internet.

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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Conference of January 18, 2019

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Peabody Award

Sigma Delta Chi

National Press Club Award

Silver Gavel Award

American Gavel Award

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