Scribble

Scribble

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

Live blog of orders and opinions | June 25, 2018 (with John Elwood and First Mondays)

Live blog of orders and opinions | June 25, 2018 (with John Elwood and First Mondays)

We live-blogged as the Supreme Court released orders from the June 21 conference (9:30 a.m.) and opinions in argued cases (10 a.m.). The justices added seven new cases to their merits docket for next term. The justices announced their decisions in Abbott v. Perez and Ohio v. American Express Co. Guest bloggers from First Mondays and John Elwood of Relist Watch also joined us.

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3rd & 7 37yd

We have the second and final decision of the day. It is Ohio v. AmeEx, it is from Justice Thomas, and it is affirmed.

by Amy Howe 6/25/2018 2:11:24 PM
The vote is 5-4, with Breyer writing the dissent.

by Amy Howe 6/25/2018 2:11:40 PM
This is an antitrust case, in which a group of states are challenging a provision in the contract between American Express and the merchants that accept its cards; the provision bars the merchants from trying to steer their customers to use a particular credit card. The main issues before the court were twofold. First, at what market should courts look at in a case like this: Just at the merchants, or at the merchants and the cardholders? Second, if courts look at both the merchants and the cardholders as the market, do the plaintiffs have to show that both sides are harmed by the provision?

by Amy Howe 6/25/2018 2:11:50 PM
The Court holds that Amex's steering provisions do not violate federal antitrust law.

by Amy Howe 6/25/2018 2:12:12 PM
Here's the opinion in Ohio v. American Express. Beth Farmer will have our analysis:

https://www.supremecourt.gov/opinions/17pdf/16-1454_5h26.pdf

by Andrew Hamm 6/25/2018 2:12:51 PM
Court defines the market as two-sided, including both merchants and cardholders. When the market is defined this way, the Court says, it is clear that the plaintiffs have not met their burden to show anti-competitive effects.

by Amy Howe 6/25/2018 2:15:41 PM
Breyer, a former antitrust law professor, is reading his dissent from the bench. This means we will have to wait some more to hear when the court will be back.

by Amy Howe 6/25/2018 2:16:30 PM
Going to bet that 1 box means no Janus

by Greg 6/25/2018 2:16:50 PM
Good news of the day: we get to spend at least one more morning with Amy.

by David 6/25/2018 2:18:18 PM
Does Justice Breyer misspell laissez faire in the opening line of his dissent...?

by Col. Mustard 6/25/2018 2:19:09 PM
Doesn’t Justice Breyer speak French?

by Guest 6/25/2018 2:20:07 PM
So do we meet again here tomorrow?

by Scott 6/25/2018 2:21:09 PM
So, if we get only one more opinion day, there are going to be 3 significant cases. Janus, Hawaii, and NIFLA. So much for the conventional wisdom that they spread out big decisions

by Matt 6/25/2018 2:22:49 PM
Where can we access the transcripts of the opinions/dissents read from the bench on decision days?

by guest 6/25/2018 2:23:15 PM
Do we think Kennedy will announce a retirement today?

by Brandon 6/25/2018 2:23:40 PM
Was AMEX controversial? Is it odd that Thomas wrote it?

by KPOM 6/25/2018 2:24:09 PM
Tomorrow we will have more opinions. They did not announce that tomorrow will be the next day, so it looks like we get to do this again at least twice!

by Amy Howe 6/25/2018 2:24:47 PM
@Col.Mustard laissez means "allow" and lassez means to grow weary. I doubt it was a pun, but the spelling is perhaps Freudian.

by Dave H. 6/25/2018 2:25:16 PM
What will happen with petitions that had been relisted and are not on today's orders list?

by CDK 6/25/2018 2:27:18 PM
They have finished releasing decisions for today. We will be back again tomorrow! I'm going to get to work now, but hopefully others will stick around to answer questions.

by Amy Howe 6/25/2018 2:30:45 PM
So 2 more days for decisions this week?

by Paul Catorce 6/25/2018 2:31:02 PM
Any idea when the 'clean up' conference might take place and approximately when the order list from that conference will be released?

by PJK 6/25/2018 2:35:28 PM
Does Alito's writing the gerrymandering case say anything about his writing (or not) Janus?

by Glenn 6/25/2018 2:37:19 PM
I'm very surprised at how Ohio came out. I just re-listened to the argument Saturday and would have sworn it was going to go for Ohio.

by Ohio 6/25/2018 2:38:12 PM
I'm outta here. See y'all later.

by Tejinder 6/25/2018 2:38:23 PM
Hi all, that's all for this morning. We'll be back tomorrow and at least one other day this week (Wednesday?).

by Andrew Hamm 6/25/2018 2:41:20 PM
Already this morning I posted the latest First Mondays podcast -- and thanks to Dan, Ian, and Leah for joining us again.

by Andrew Hamm 6/25/2018 2:41:45 PM
Today we'll have Amy writing on this morning's orders and on Abbott v. Perez, the racial gerrymandering case from Texas. Beth Farmer will write on the antitrust decision, Ohio v. AmEx. And Mark Walsh will provide a "view" from the courtroom.

by Andrew Hamm 6/25/2018 2:42:34 PM
If we didn't get to your question or comment -- sorry about that and hopefully we can tomorrow!

by Andrew Hamm 6/25/2018 2:42:54 PM

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, 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 -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- 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.
- 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 »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- 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.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
More Petitions »
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Statistical Snapshot

Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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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.
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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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Awarded the American Gavel Award for Distinguished Reporting About the Judiciary to recognize the highest standards of reporting about courts and the justice system.
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Awarded the Webby Award for excellence on the internet.

Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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