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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.

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

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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This Week at the Court
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.
The justices will meet next for their February 15 conference.
The calendar for the February sitting, which will begin on Tuesday, February 19, is available on the Supreme Court's website.
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.
see all this term’s cases »
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.
More Petitions »
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.
see all this term’s cases »
Recent Special Features
Statistical Snapshot

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 and opinions | June 25, 2018 (with John Elwood and First Mondays)

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

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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