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
3rd & 7 37yd
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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.
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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 -
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.
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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.
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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).
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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.
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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.
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@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.
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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?
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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.
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"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."
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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.