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Live blog of orders and opinions | March 5, 2018

In this live blog we answer reader questions and discuss the two cases granted this morning -- Knick v. Scott Township and Gundy v. United States -- as well as the two opinions in argued cases that were released -- Texas v. New Mexico and U.S. Bank National Association v. Village at Lakeridge.

3rd & 7 37yd

Good morning and welcome to the live blog

by Andrew Hamm 3/5/2018 2:24:54 PM
Good morning, everyone! Nice to be back today. The Court is not hearing oral arguments today, so we will have orders at 9:30 and then presumably opinions in one or more argued cases at 10 am. The justices do not sit next week, and then the March sitting will start on March 19.

by Amy Howe 3/5/2018 2:27:12 PM
As is almost always the case, we do not know how many opinions we are getting, or which ones.

by Amy Howe 3/5/2018 2:27:43 PM
But first, we will concentrate on orders, which are expected momentarily.

by Amy Howe 3/5/2018 2:28:20 PM
Wonderful law student Aurora Barnes compiled the many relists for this conference in this post:
Petitions to watch | Conference of March 2 - SCOTUSblog
SCOTUSblogIn its conference of March 2, 2018, the court will consider petitions involving issues such as whether a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation constitutes “cause” to overcome procedural default when the denial operated as an

by Andrew Hamm 3/5/2018 2:29:00 PM
Any speculation on which opinions? Still too soon for Oil States?

by CRS 3/5/2018 2:29:13 PM
Hi everyone.

by Eric Citron 3/5/2018 2:30:18 PM
The Court has granted two cases.

by Amy Howe 3/5/2018 2:31:51 PM
The first is Knick v. Scott Township, limited to question one of the petition. This is a property rights case, asking the justices to reconsider the decision in Williamson County Regional Planning v. Hamilton Bank, which requires a property owner to exhaust his state remedies before filing a federal constitutional takings claim.

by Amy Howe 3/5/2018 2:33:24 PM
The order list for March 5 is available on the Supreme Court's website at this link: https://www.supremecourt.gov/orders/courtorders/030518zor_pnk0.pdf

by Andrew Hamm 3/5/2018 2:33:28 PM
The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine.

by Amy Howe 3/5/2018 2:34:44 PM
Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

by Amy Howe 3/5/2018 2:36:39 PM
There was one call for the views of the U.S. solicitor general, in United States ex rel Carter v. Halliburton.

by Amy Howe 3/5/2018 2:37:44 PM
A couple of cases that had been on John Elwood's Relist Watch were denied today: Wilson v. Callahan (standard for use of force in police shooting case), Bank Melli v. Bennett (interpretation of Foreign Sovereign Immunities Act), and Scott v. FDIC (appointments clause).

by Amy Howe 3/5/2018 2:41:08 PM
Both questions granted today would represent really big changes in their respective areas of law.

The requirement for state-court exhaustion in takings cases is the thing that routes most of these cases through state court rather than federal court. Absent that, you could see a much more robust enforcement of the takings clause in federal courts, especially because federal courts can't reinterpret state law to avoid the takings problem.

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Interesting stuff.

by Eric Citron 3/5/2018 2:44:32 PM
Was there an order (or have I missed a miscellaneous order?) dealing with the Pennsylvania GOP's efforts to stop their state Supreme Court's redistricting map from going into effect?

by Sam 3/5/2018 2:45:42 PM
We have gotten a lot of questions about whether specific cases will be coming today. I think Sessions and Dimaya is certainly a possibility; it was argued on October 2. Same for Epic, which was argued the same day. Christie v. NCAA was argued on December 4, so I think the chances are lower but it's still possible.

by Amy Howe 3/5/2018 2:49:59 PM
Are we expecting any orders/opinions after today before March 19th?

by Eric 3/5/2018 2:50:38 PM
Someone on twitter said there would be a divided argument in NIFLA? Is that true, and what does it mean?

by Dee 3/5/2018 2:51:58 PM
@EricCitron You're right; I don't think the Court has used the non-delegation doctrine to invalidate a statute since the 1930s. It's interesting to speculate what impact a decision on SORNA might have for all the delegations tied to civil statutes. Or, for that matter, statutes with both civil and criminal applications, like the Endangered Species Act.

by David Hahn 3/5/2018 2:52:32 PM
One thing of note on Gundy: according to the government’s brief in opposition, ten circuits have reached the question of whether SORNA violates the nondelegation doctrine, and all ten have said no. So there was no circuit split here. And the brief also points out that the Court has rejected a large number of petitions seeking review of the same issue in the recent past. All this suggests that there must be four Justices who really want to review this question despite the circuit unanimity, and perhaps that Justice Gorsuch joining the bench is what gave the prior group of three a fourth vote (or perhaps that he even wrangled three others who previously didn’t care that much). Feels a bit like the Fair Housing Act case from a couple of Terms ago (Inclusive Communities). Wonder if this one could go the same way, with a surprise 5-4 in favor of the government?

by LawNerd 3/5/2018 2:56:08 PM
One box of opinions today. The number of boxes is a rough proxy for the number of opinions.

by Edith Roberts 3/5/2018 2:56:57 PM
But speaking of Gerrymandering, are there good odds that we'll see a decision in Gill v Whitford soon? Or will that be one of the last?

by Jon Russell 3/5/2018 2:57:11 PM
I found the grid chart of opinions released and yet pending at www.scotusblog.com to be pretty handy; perhaps worth posting a screenshot in the liveblog.

by John Hawkinson 3/5/2018 2:57:18 PM
Kennedy in passing described the non-delegation doctrine as "somewhat moribund" in oral argument in the Hobby Lobby case.

by jwalden 3/5/2018 2:58:52 PM
We have the first opinion, and it is Texas v. New Mexico.

by Amy Howe 3/5/2018 3:01:55 PM
It is a water rights case, not a basketball game.

by Amy Howe 3/5/2018 3:02:08 PM
The Court holds that the United States may pursue its claims for violations of the Rio Grande Compact, over Colorado's objections.

by Amy Howe 3/5/2018 3:03:03 PM
"This Court, using its unique authority to mold original actions, has sometimes permitted the federal government to participate in compact suits to defend 'distinctively federal interests' that a normal litigant might not be permitted to pursue in traditional litigation."

by Amy Howe 3/5/2018 3:04:16 PM
The opinion in Texas v. New Mexico is available on the Supreme Court's website at this link. Ryke Longest will have our analysis: https://www.supremecourt.gov/opinions/17pdf/141orig_f204.pdf

by Andrew Hamm 3/5/2018 3:04:28 PM
It is by Gorsuch, and it is unanimous.

by Amy Howe 3/5/2018 3:04:37 PM
And we have the second and final opinion of the day, in US Bank v. Village at Lakeridge.

by Amy Howe 3/5/2018 3:05:36 PM
This case is necessarily a very narrow decision, because it deals with the nature of the Court's original jurisdiction -- which is used very rarely.

by Eric Citron 3/5/2018 3:05:51 PM
It is by Kagan and it is unanimous, although there are concurring opinions. Interesting ones. Kennedy concurs, and then Sotomayor filed a concurring opinion joined by Kennedy, Thomas and Gorsuch.

by Amy Howe 3/5/2018 3:06:21 PM
The opinion in U.S. Bank is available on the Supreme Court's website at this link. Ronald Mann will have our analysis. https://www.supremecourt.gov/opinions/17pdf/15-1509_4fbi.pdf

by Andrew Hamm 3/5/2018 3:06:43 PM
The Court rules that the Ninth Circuit was correct to review the Bankruptcy Court's determination regarding whether someone was a "non-statutory insider" for clear error, rather than de novo.

by Amy Howe 3/5/2018 3:07:53 PM
And that is all we have for the day. Thanks so much for joining us. I'm not sure exactly when we will be back here, but probably not until March 20 (the next day that the Court is likely to issue opinions). Hope to see you then!

by Amy Howe 3/5/2018 3:09:54 PM
Why did Gorsuch read first? Thought it was seniority order?

by Jake 3/5/2018 3:10:04 PM
The opinion for the Court clarifies that when answering a question that may involved "mixed" issues of law and fact involves primarily factual work, a court of appeals should review for clear error rather than de novo. But Justice Sotomayor's concurrence (for four Justices) points out that the underlying test in this case presumes that the question is largely factual when it may not be so. That means you might see a dispute in the future about whether or not the Ninth Circuit is using the right test for this bankruptcy issue. But the Court's clarification on the standard of review more generally would remain relevant.

by Eric Citron 3/5/2018 3:10:50 PM
Adios, blogosphere.

by Eric Citron 3/5/2018 3:12:52 PM
Is Texas v NM Gorsuch's second opinion ever?

by no1amyfan 3/5/2018 3:14:19 PM
Hi all -- that's all we've got for this morning. Thank you to everyone for joining us. The next opinion day might be in two weeks. Happy Monday!

by Andrew Hamm 3/5/2018 3:21:15 PM

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The Supreme Court released additional orders from the January 11 conference on Monday; the justices called for the views of the U.S. solicitor general in CSX Transportation Inc. v. Alabama Department of Revenue, Alabama Department of Revenue v. CSX Transportation Inc. and Toshiba Corp. v. Automotive Industries Pension Trust Fund.
On Tuesday, the justices released their opinions in New Prime Inc. v. Oliveira and Stokeling v. United States.
On Monday, the justices heard oral argument in Thacker v. Tennessee Valley Authority and Rimini Street Inc. v. Oracle USA Inc.
On Tuesday, the justices heard oral argument in Home Depot U.S.A. Inc. v. Jackson and Azar v. Allina Health Services.
On Wednesday, the justices heard oral argument in Knick v. Township of Scott and Tennessee Wine & Spirits Retailers Association v. Blair.
On Friday, the justices meet for their January 18 conference; John Elwood's Relist Watch compiles the petitions relisted for this conference.
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.
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 »
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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	23	24	25	26
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