Scribble

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

Featured Posts

Whitaker appointment dispute reaches Supreme Court – Steve Vladeck

Justices to weigh in on evidence in census citizenship-question dispute – Amy Howe

Relist Watch – John Elwood
Email Digest Sign-Up
Receive a daily email digest from Feedburner by entering your email.
Merits Case Pages and Archives

Archives

or

This Week at the Court
The Supreme Court will release orders from the November 16 conference on Monday at 9:30 a.m; John Elwood’s Relist Watch compiles the petitions that were relisted for this conference.
The calendar for the December sitting, which will begin on Monday, November 26, is available on the Supreme Court’s website.
Recent Decisions
- Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.
see all this term’s cases »
Current Relists
- Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.
- City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.
- Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.
More Petitions »
Major Cases
- In re Department of Commerce
  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.
- 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.
- Timbs v. Indiana
  Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
- Apple Inc. v. Pepper
  Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
see all this term’s cases »
Recent Special Features
Statistical Snapshot

Cases argued 22

Cases decided 1

Summary reversals 0

Merits cases granted to date 55

see all »
Live Blog Archives
See all
Twitter Feed

Tweets by @SCOTUSblog

Full Calendar Submit Event

Nov. 2018

Su	Mo	Tu	We	Th	Fr	Sa
				1	2 Conference	3
4	5 Orders STURGEON V. FROST (17-949) VIRGINIA URANIUM INC. V. WARREN (16-1275)	6 BUCKLEW V. PRECYTHE (17-8151) BNSF RAILWAY CO. V. LOOS (17-1042) Opinions	7 REPUBLIC OF SUDAN V. HARRISON (16-1094) CULBERTSON V. BERRYHILL (17-773)	8 Investiture Ceremony for Justice Brett Kavanaugh	9 Conference	10
11	12 Holiday	13 Orders	14	15	16 Conference	17
18	19	20	21	22 Holiday	23	24
25	26 Orders APPLE INC. V. PEPPER (17-204) NIEVES V. BARTLETT (17-1174)	27 NUTRACEUTICAL CORP. V. LAMBERT (17-1094) CARPENTER V. MURPHY (17-1107)	28 TIMBS V. INDIANA (17-1091)	29	30 Conference

Orders/Opinions
Arguments
Conferences

Events
Holidays
Multiple

Download our App in the Apple Store
First Mondays see all
Videos see all

Justice Kagan at Georgetown

On October 24 at Georgetown University Law Center, Justice Elena Kagan spoke about pro bono and public service and other topics with the Bob Carlson of the American Bar Association.

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.